Federal law prohibits foreign nationals who are not lawful permanent residents from funding American political candidates’ campaigns or donating to groups that engage in electioneering. A three-judge panel of federal judges just rejected a lawsuit seeking to strike this law down — with George W. Bush appointees Brett Kavanaugh and Rosemary Collyer both joining the majority opinion:

[I]t is undisputed that the government may bar foreign citizens from voting and serving as elected officers. It follows that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections. Those limitations on the activities of foreign citizens are of a piece and are all “part of the sovereign’s obligation to preserve the basic conception of a political community.”

While today’s decision is a rare and welcome victory for the proposition that there are limits on people’s (or corporations’) ability to buy elections, it is unlikely to be the end of the road for this case. Federal law allows this case to be appealed directly to the Supreme Court, and it gives the justices far fewer tools to avoid deciding the case than they normally have. So the case will almost certainly be in front of the justices in the near future.

It’s worth noting however that Judge Kavanaugh is not simply one of George Bush’s judges, he is a former Supreme Court clerk who is widely believed to be on the short list for potential GOP nominees to the high court. Accordingly, his vote to uphold the law suggests that this challenge has a rocky path ahead of it — even in front of this Supreme Court.

Amusingly, Judge Kavanaugh’s opinion also includes a brief citation to foreign law — “[i]t bears mentioning, moreover, that plaintiffs’ home countries — Israel and Canada — and many other democratic countries impose similar restraints on political spending by foreign citizens. See, e.g., Canada Elections Act [and] Knesset Election Law.” While this citation to foreign law is entirely appropriate, Senate conservatives have repeatedly claimed when a judge cites foreign law they might as well be tearing our Constitution into itty-bitty pieces. Both Justice Sonia Sotomayor and Justice Elena Kagan suffered through blistering questioning during their confirmation hearings because they refused to pretend that foreign legal systems have absolutely nothing whatsoever to teach America.

Indeed, the far right’s disdain for foreign law is so intense that Kavanaugh may have taken himself out of the running for a nomination to a higher Court. In light of the fact his fellow Supreme Court shortlister Judge Jeffrey Sutton just rendered himself ineligible for a promotion by rejecting a challenge to the Affordable Care Act, it remains to be seen whether any judge in the country can pass the Tea Party’s purity test the next time a Republican president needs to nominate someone for the Supreme Court.

Last week, ThinkProgress reported that President Obama nominated David Barlow, the chief legal adviser to Tea Party Sen. Mike Lee (R-UT), to be the next U.S. attorney in Utah. As we explained then, Barlow’s close association with Lee raises very serious questions about whether he can be trusted to fill this important job unless he firmly and unambiguously disavows many of his boss’ most radical views. Lee believes that federal child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution.

There are plausible reasons why an attorney who does not believe that the Constitution gives the middle finger to seniors and working Americans could come to work for someone like Lee — it is even possible that Barlow sought the U.S. attorney nomination because he wanted a face-saving way to leave a job that forces him to push a dangerous and radical interpretation of the Constitution. Nevertheless, Barlow appears to be a very early supporter of Lee’s senate candidacy. He made the maximum legal contribution to Lee’s campaign as early as January of 2010 — long before many political observers realized that Lee could exploit Utah’s arcane GOP nominations process to take out a three term incumbent Republican senator:

Lee used to work at Barlow’s former law firm, so it is possible that the men developed a personal relationship that inspired Barlow to contribute so generously to the radical tenther’s campaign. Moreover, a White House spokesperson assures ThinkProgress that “the President is confident that Mr. Barlow will exercise his discretion to further the priorities and needs of citizens of Utah in a manner consistent with this Administration’s priorities.” It would be unfair to assume that Barlow must believe everything that his boss believes about the Constitution.

Nevertheless, Barlow’s close association with Lee — both as a close adviser and as a top donor — does need to be explained. If Barlow disagrees with Lee that child labor laws, Social Security, and Medicare are unconstitutional, then he should publicly say as much before he receives a confirmation vote in the Senate.

Last week, the Seventh Circuit struck down Wisconsin’s “Inmate Sex Change Prevention Act,” which, as the name suggests, prohibits transgendered prisoners from receiving hormone therapy and other medical treatments which cause their physical characteristics to match their gender identity. Significantly, the court rooted its decision in the Eighth Amendment’s bar on cruel and unusual punishment, which establishes that “[r]efusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture.”

The core of the Seventh Circuit’s decision is that gender identity disorder (“GID”) must be accorded the same respect given to other medical conditions. Left untreated, the court explained, GID leaves to severe anxiety, depression, and even suicide or mutilation of one’s own genitals. Worse, if an inmate who has previously undergone hormone therapy is suddenly cut off from those treatments, it can have severe physiological consequences including muscle wasting and “neurological complications.”

Although earlier decisions suggested that the Eighth Amendment does not require inmates to receive “esoteric” treatments like hormone therapy, the court disposed of this suggestion by noting that it lacks any basis in fact:

The court’s discussion of hormone therapy and sex reassignment surgery in these two cases was based on certain empirical assumptions—that the cost of these treatments is high and that adequate alternatives exist. More than a decade after this court’s decision in Maggert, the district court in this case held a trial in which these empirical assumptions were put to the test. At trial, defendants stipulated that the cost of providing hormone therapy is between $300 and $1,000 per inmate per year. The district court compared this cost to the cost of a common antipsychotic drug used to treat many DOC inmates. In 2004, DOC paid a total of $2,300 for hormones for two inmates. That same year, DOC paid $2.5 million to provide inmates with quetiapine, an antipsychotic drug which costs more than $2,500 per inmate per year. [...] The district court concluded that DOC might actually incur greater costs by refusing to provide hormones, since inmates with GID might require other expensive treatments or enhanced monitoring by prison security. [...]

More importantly here, defendants did not produce any evidence that another treatment could be an adequate replacement for hormone therapy. Plaintiffs’ witnesses repeatedly made the point that, for certain patients with GID, hormone therapy is the only treatment that reduces dysphoria and can prevent the severe emotional and physical harms associated with it.

In other words, rather than rely on stereotypical assumptions regarding the nature of GID or the cost of treating it, the court actually engaged with the medical science surrounding the condition. In this sense, the Seventh Circuit’s decision closely resembles Judge Vaughn Walker’s opinion striking down California’s Prop 8, which carefully and meticulously examined each of the anti-gay claims that same-sex couples are somehow inferior and found no factual support for any of these claims.

For this reason, both Walker’s decision and the Seventh Circuit’s transgender inmates decision reflect an important positive trend in the judiciary’s treatment of sexual minorities. The only basis for laws that single out LGBT individuals for special restrictions are outdated prejudices with no basis in reality. The sooner courts begin testing the assumptions behind those prejudices, the faster anti-LGBT discrimination will become a thing of the past.

Justice Antonin Scalia is not the most conservative member of the Supreme Court — that distinction goes to the only justice who has suggested child labor laws are unconstitutional, Justice Clarence Thomas. Yet he is easily the Court’s most strident conservative. When Justice Sandra Day O’Connor was the Court’s key swing vote, Scalia alienated her by writing that her opinions “cannot be taken seriously” and by attacking her “utter inconsistency.” Likewise, when current-swing vote Anthony Kennedy reached the obvious conclusion that it’s not the government’s job to tell you who you can have sex with, Scalia attacked his decision as “so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.”

Indeed, many commentators believe that Scalia’s stridency does more to undermine his ability to form a conservative majority than it does to aide it. O’Connor and Kennedy certainly didn’t like being attacked by their colleague, and his insults drove them right into the waiting arms of moderate Justice John Paul Stevens.

That is, until now. As Joan Biskupic points out, Scalia authored three of the Court’s most significant opinions this past term. These cases include the single most radical legal shift in the last year, a case called AT&T Mobility v. Concepcion that effectively immunizes corporations from consumer class actions:

Scalia has written several blockbuster majority opinions this term, suggesting that Chief Justice John G. Roberts Jr. trusts him to “hold five,” Biskupic says. At an ABA Annual Meeting program on Friday, Biskupic rattled them off. They include decisions:

• Striking down California’s ban on the sale of violent video games to minors.
• Barring a huge federal class-action suit against Wal-Mart by employees claiming sex discrimination.
• Upholding an AT&T contract requiring individual arbitration in consumer disputes.

If Scalia truly can be trusted to consistently “hold five” — a term that refers to his ability to keep the five justice majority needed to decide a case the way he wants it decided, than this represents a drastic rightward shift in the Court’s dynamics. For nearly 20 years, the only check on the Court’s right flank was the fact that its swing voters sometimes got spooked by far right’s aggression. If that is no longer the case, it can only mean many more decisions placing the desires of wealthy and well-connected interest groups ahead of ordinary Americans.