Donziger Newsletter: Forget January 6 Because the Judicial Coup Already Happened

Here are articles that are must-reads to understand the depth of our dystopia

(Editor’s Note from SD: In addition to my other writings, this is the first of what will be regular newsletters curating what I believe are the most important articles and posts on climate, human rights, and the law. I would deeply appreciate it if you could support this work by subscribing free to my Substack at the button below; if you become a paid subscriber at $6/month or $60 per year, you will get exclusive content including an upcoming interview with the great climate scientist Peter Kalmus. Thanks so much; the first newsletter is just below.)

Supreme Court Carries Out a “Judicial Coup” in the US

I have stated that a string of US Supreme Court decisions over the last two weeks have cemented a right-wing corporate-financed takeover of the United States led largely by the fossil fuel industry. While most people concerned with the survival of our democracy are still focused on Trump’s attempt to overthrow the election results on January 6, a slow-motion judicial coup decades in the making was being completed by six extremist judges on the Supreme Court — four of them appointed by Presidents (Bush and Trump) who did not win the popular vote but took office anyway. I question whether after these last two weeks we can be confident that we are still living in a democracy.

It is clear the Supreme Court is no longer a judicial body; the six right-wing justices have turned it into a political body that I would argue it has lost much of its legitimacy. Like many effective coups, the judicial one was designed to not look like a coup; there was no army takeover, no violence, no announcement that it happened. But it was a coup nevertheless, as it intruded radically on almost all important aspects of life and freedom in the US: from religion (allowing coercive prayer in public schools); to reproductive rights and health (outlawing abortion); to destroying any chance we have to deal with the climate crisis (by gutting the rule-making power of the Environmental Protection Agency); to blocking our ability to make our society safe (by rendering unlawful New York’s ban on guns); to undermining Indigenous peoples (by eliminating the right of Native American tribes to prosecute crime on their territories).

The EPA decision in particular not only is the equivalent of a potential death blow to the planet, it also strikes at the heart of the ability of federal agencies to carry out the will of Congress via rule-making. This neutralizes the power of what the corporate right calls the “deep state” — the experts, scientists, and subject matter specialists who actually regulate industry for the benefit of all and who are vital to a well-ordered functioning society. The court now says Congress must do this directly — a recipe for inaction, which is just what the judicial coup-plotters and their financial backers wanted. CNN wrote an excellent article.

https://www.cnn.com/2022/06/30/politics/supreme-court-climate-change-epa-regulations/index.html

Sirota Exposes Key Role of Chief Justice Roberts in Judicial Coup

I consider David Sirota one of the best journalists in the US. In a fair society, his by-line would be on the front page of the New York Times but we know that weakened institution only manages the information narrative for the elites as opposed to reporting the complete truth (the NYT ignored my illegal 993-day detention after I helped Indigenous peoples hold Chevron accountable for massive pollution). Sirota carefully explains how the recent string of Supreme Court decisions is largely a result of earlier decisions in the campaign finance space where Chief Justice John Roberts led the charge to legalize corporate corruption in our political system. The famous Citizens United case (which equates corporate donations with protected speech) laid the groundwork for the judicial coup we just witnessed. Roberts tries to portray himself as a “moderate” the same way Liz Cheney is now considered by many to be a moderate; Roberts is actually “the man behind the curtain” who choreographed the entire show, according to Sirota.

https://www.levernews.com/roberts-is-the-man-behind-the-curtain/

Industry Planned the Judicial Takeover for Many Years

These awful Supreme Court decisions did not just happen out of the blue. Below is an article on how the fossil fuel industry for decades implemented a well-financed strategy to block action on climate by essentially rigging our courts to favor industry. Carol Davenport’s article in The New York Times (which on occasion does good journalism) shows the insidious ways industry has used friendly judges to “rewrite” environmental laws in its favor and weaken government’s ability to tackle global warming. We have made much progress on climate at the grassroots level only to be stymied by right-wing judges who act politically under cover of their black robes — Judge Kaplan, who had me detained, is an example. While the corporate right complains of the “deep state”, this article shows it is actually the fossil fuel industry, the Koch brothers funding network, and other allies who have created the real deep state to serve their narrow interests at the expense of the majority.

https://www.nytimes.com/2022/06/19/climate/supreme-court-climate-epa.html?smid=tw-share

Secret Investor “Courts” Violate Rule of Law but Help Protect Oil Profits 

One way the “law” is used by industry to protect its profits is through the deployment of secret investor arbitration proceedings where the public cannot attend. This investor arbitration process — enshrined in most bilateral investment treaties — allows private lawyers to act as “judges” to issue rulings in favor of private companies that force sovereign nations (think Ecuador) to pay billions of dollars to compensate industry for “lost profits” due to legislative actions that address the climate crisis. This is outrageous on every level; Chevron used this procedure to sue the government of Ecuador by claiming our pollution case against the company violated various private contractual rights. This forced Ecuador to spend at least $100 million on legal fees — monies that could have been spent on health care or education or for a clean-up. These secret investor “courts” need to be eliminated.

https://www.levernews.com/fossil-fuel-interests-are-suing-countries-for-taking-climate-action-and-winning/

For a deeper dive on the same subject, this is an article I and two colleagues wrote years ago about how Chevron has used the secret courts to delay a result for the Indigenous peoples of Ecuador harmed by pollution:

https://digitalcommons.wcl.american.edu/hrbrief/vol17/iss2/2/

Jessica Reznicek and Judicial Intimidation

Jessica Reznicek is a name that should have wide resonance. She is a heroic US climate activist who after engaging in an act of peaceful civil disobedience against a privately-owned oil pipeline was sentenced to 8 years in prison — 5 of which were the result of a judge designating her a “terrorist” even though she harmed no person and did not target the government. By adding a 5-year “terrorism” enhancement to Reznicek’s base sentence of three years, the appellate courts sent the chilling message that “those who take direct action against rapacious energy corporations” will be treated as enemies of the state. This is yet another attack by our courts on Free Speech and an attempt to criminalize legitimate advocacy.

https://theintercept.com/2022/06/08/dakota-pipeline-protester-jessica-reznicek-terrorism/

A Win Against Shell In Nigeria

This has been a tough stretch, but there are legal victories to celebrate. Residents of Nigeria's Niger Delta, Africa's largest oil-producing region, face high poverty rates and a largely degraded environment owing to hundreds of spills every year by foreign companies like Shell and Chevron. Nigerian lawyer Chima Williams and four Nigerian farmers recently won a landmark ruling in the Netherlands forcing Shell to pay for the reckless spills of its subsidiary in the Niger Delta. Let’s remind ourselves that when courts are fair, justice can be won.

https://www.cnn.com/2022/05/25/africa/shell-oil-spills-nigeria-intl-cmd/index.html

The Julian Assange Case is Part of a Disturbing Trend

On a related issued: I believe one of the great violations of the rule of law in the US is the unjust indictment and pending extradition of journalist Julian Assange after he released documents exposing US war crimes in Iraq. None other than the United Nations has concluded Assange is currently being tortured in the high-security Belmarsh prison where he sits for years after having been convicted of no crime other than bail-jumping. The Assange case appears to be pure political retaliation engineered by those in the national security apparatus trying to protect their own human rights abuses. In explaining the Assange case, attorney Glenn Greenwald writes brilliantly that “Free Speech” guarantees in the US and United Kingdom exist only on a piece of parchment and are mired in hypocrisy. I note that President Obama refused to indict Assange; Biden shows no such scruples, much to the detriment of our country. Please pay attention to this important case as Assange now faces 175 years in prison for his non-crime.

The UK's Decision to Extradite Assange Shows Why The US/UK's Freedom Lectures Are a Farce

Hope: Colombia Elects a Progressive as President  

One way to start solving these deep-rooted problems is by electing a full-scale outsider to overhaul US politics, similar to what the people of Colombia did recently by electing Gustavo Petro as the first progressive President of their country. In my opinion, we need some version of this sort of transformational figure in the United States. This article in Foreign Affairs provides excellent background on Petro and lessons for all of us who are fighting for a better world from the United States.   

https://www.foreignaffairs.com/articles/colombia/2022-06-19/gustavo-petros-big-win