Neither Amy Coney Barrett, nor the five Republican men on the high court, are committed to preserving a woman's right to choose or advancing maternal healthcare. Instead, they are poised to strip away an array of rights that Americans (and not just women) have regarded as constitutionally protected. This judicial crusade seeks, by taking us backwards, to Make America Great Again. I use that phrase not to denote a special affinity with Donald Trump, but to highlight the commonality of the agenda of the court's majority with the retrograde policy preferences of the contemporary Republican Party and the cultural resentment that motivates the Republican base.

These justices are clawing back rights of individuals that the Supreme Court, the Congress, and the executive branch have recognized in decades past. Moreover, they are placing limits on the authority of the legislative and executive branches to enact and implement public policies that have been permitted in the past. Even the federal bench has not been spared the court's heavy hand.

As I've noted many times, the agenda of the 'conservative' court majority is more closely connected to the agenda of the contemporary Republican Party than it is to the Constitution, to any legal theories of constitutional or legislative interpretation (textualism, originalism, strict constructionism), or to traditional conservative judicial principles (judicial restraint, stare decisis, federalism). This is an activist court majority, which is crafting constitutional constraints to preclude policy choices by Democrats.

This project is of a piece with the efforts of Fidesz, Victor Orbán's political party, to disable democratic politics by forestalling public policy outcomes favored by its political opponents (as recounted in Jan-Werner Müller's What Is Populism?). Republicans have embraced this populist maneuver, which Müller describes in these words: "The populists' goal is to maintain power and, if they lose an election, to ensure that the victors will be hamstrung when trying to govern."

This court majority is ready, willing, and able to overrule the elected branches of the federal government with its own policy choices which, as a rule, match the policy preferences of the Republican Party. Beyond an antipathy toward Democratic choices, the Republican majority displays animosity to (small-d) democratic choices as well. The Republican justices' hostility toward voters, voting rights, and majority rule reinforces their partisan agenda.

The usual -- one more time

It is hardly difficult to make the case that the Republican justices are committed partisans, no matter how much they resist this characterization.

Stare decisis (Latin for 'to stand by things decided') suggests adherence to precedent. "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." In its rush to rework the Constitution, conservatives have generated uncertainty, encouraged recurrent litigation, and obliterated settled law.

Justice Clarence Thomas was for it before he was against it. In 1991, when seeking confirmation before the Senate, he said “you cannot simply, because you have the votes, begin to change the rules, to change precedent.” By 2019, he said, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”

The quotations are from an amicus brief, filed in 2019 by Senator Sheldon Whitehouse, which noted that from October 2005 through October 2017, there were 78 5-4 (or 5-3) opinions in which the majority consisted solely of Republican-appointed justices:

With bare partisan majorities, the Court has influenced sensitive areas like voting rights, partisan gerrymandering, dark money, union power, regulation of pollution, corporate liability, and access to federal court, particularly regarding civil rights and discrimination in the workplace. Every single time, the corporate and Republican political interests prevailed.

The Republican majority has actively created new law to get its way. The liberal justices -- appointed by Democratic presidents -- have often referenced the disdain of the conservatives (that is, Republican-appointed) for stare decisis, now that they find themselves empowered as a majority.

Justice Stephen Breyer, in dissent:

It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Justice Elena Kagan, in dissent:

Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification,” Rumsey, 467 U. S., at 212—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.

Because it wanted to. I've posted many times about the Roberts Court's hostility to voting rights, a cause that buttresses Republican political fortunes when the party's preferred policies fail to secure popular support. John Roberts' obsession with gutting the 1965 Voting Rights Act began four decades ago during his career in the Reagan administration. He failed then, but succeeded in taking the first step in 2013, in Shelby County v. Holder by striking down the preclearance provision of the statute.

Justice Ruth Bader Ginsberg's dissent challenging the majority's logic -- in ruling that, since discrimination in voting had decreased since 1965, the law was no longer necessary -- is well known: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

Legal scholar and former Solicitor General Walter Dellinger (who passed away last month) described at the time the shamefully flimsy justification for that 2013 decision.

The first pillar of the decision is the “equal sovereignty of the states,” a constitutional principle that—as Judge Posner puts it with his customary precision—“does not exist.” As he says, “The opinion rests on air.”
The other basis for the court’s decision is the fact that the formula for deciding which states and municipalities are covered by Section 5 (and thus must go to the Department of Justice or court for pre-approval of a change to election law) is out-of-date. In the view of the court’s majority, the formula is not connected with sufficient logic to current acts of racial discrimination in voting. But there has never been a constitutional requirement that Congress act on up-to-date information or maintain a close logical nexus between problem and solution.

Congress is, in Dellinger's words, "constitutionally empowered to paint with a broad brush." He added that in Shelby County the majority never mentions the text of the 15th Amendment. The amendment consists of two sentences:

Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2: Congress shall have the power to enforce this article by appropriate legislation.

So much for the conservatives' devotion to textualism. Instead of acknowledging the plain language of the amendment granting Congress authority to act, the justices rely on made-up, results-driven theories promoted by the Federalist Society. While this tact has the advantage of consistency with GOP objectives, it is a transparently shoddy contrivance.

A new day

My lament as a blogger: analytical reviews of decisions and dissents, of Constitutional provisions and legislative texts, and so on take time and thought and I'd like to be focusing on something else.

A recent piece by Ronald Brownstein ("The Supreme Court's 'Dead Hand'") suggests a more promising alternative for posts regarding the direction of the Supreme Court. Brownstein skips the legal skirmishing and shenanigans we're observing and, instead, takes a big picture look at the political realm in 21st century America. (In future posts, I hope to emulate this approach.) Brownstein begins:

The Supreme Court has set itself on a collision course with the forces of change in an inexorably diversifying America.
The six Republican-appointed Supreme Court justices have been nominated and confirmed by GOP presidents and senators representing the voters least exposed, and often most hostile, to the demographic and cultural changes remaking 21st-century American life. Now the GOP court majority is moving at an accelerating pace to impose that coalition’s preferences on issues such as abortion, voting rights, and affirmative action.
On all of these fronts, and others, the Republican justices are siding with what America has been—a mostly white, Christian, and heavily rural nation—over the urbanized, racially and religiously diverse country America is becoming.

What a great summary (with less muss and fuss than my typical posts), which opens to a discussion of  the broader ramifications of the Republican jurists' campaign to take America back to an earlier age. 

Comparing what's happening today with the antebellum years (when the court sided against attempts to stop the spread of slavery) and with the court's Lochner Era (when a conservative majority tried to smother FDR's economic agenda), Brownstein suggests that in each case an old guard was engaged in a "backward-facing crusade" against a burgeoning majority with different perspectives and preferences.

The Republican majority on the court represents a mostly white, Christian, rural America, which is determined to maintain dominance. These justices have set out to suppress the policy choices of a new majority of urbanized, racially and religiously diverse Americans. Brownstein's review suggests that (as in past eras) we may be in for a decades-long struggle between these two coalitions.

Yet another aspect of our democratic impasse. 

That recent headline in Politico brought to mind a controversy, raised before the American Revolution, about the nature of democracy and of representation. I'll address that issue briefly in this post. (Note that I offer only a cursory nod toward Joe Manchin's actions -- as West Virginia state senator, governor, and U.S. senator -- from which his family business profited. I'm just jumping off a headline to highlight an issue debated in 18th century America.)

In The Radicalism of the American Revolution, Gordon S. Wood asserts (in Chapter 14, Interests) that the revolutionary movement created "the first society in the modern world to bring ordinary people into the affairs of government—not just as voters, but as actual rulers. This participation of common people in government became the essence of American democracy, and the Revolution made it so."

This represented a fundamental divergence from an earlier vision of public servants drawn from the gentry. Think of men like Washington and Jefferson: a class of wealthy, educated, socially well-connected landowners who, setting aside their own personal and financial interests, could afford to serve in government in the best interests of their communities. Acting out of virtue, rather than for personal advantage, they were to be disinterested. By the time of the Revolution, this notion was becoming less tenable, as democratic practice overran this neat, idealized theory of democracy.

As Wood relates, "By the 1770s artisans in the various port cities were forming slates of candidates and were being elected as artisans to various committees and congresses and other prominent offices. The traditional gentry no longer seemed capable of speaking for the interests or artisans or of any other groups of ordinary people."

A 1786 debate in the Pennsylvania assembly between William Findley and Robert Morris (on rechartering the Bank of North America) highlighted the issue of representation. As told by Wood, Findley advocated for representation by folks with private interests (as opposed to disinterested gentlemen standing above the fray):

... The promotion of interests in politics, suggested Findley, was quite legitimate, as long as it was open and aboveboard and not disguised by specious claims of genteel disinterestedness. The promotion of private interests was in fact what American politics ought to be about.
Findley was not content merely to expose and justify the reality of interest-group politics in representative legislatures. He glimpsed some of the important implications of such interest-group politics, and in just a few remarks he challenged the entire classical tradition of disinterested public leadership and set forth a rationale for competitive democratic politics that has never been bettered. ...

Interest group politics

Essentially, Findlay argued that if groups -- such as carpenters, shoemakers, farmers, butchers, mechanics -- were to have their interests represented in the legislature, it made no sense for their representatives to be disinterested gentlemen. Why (even if such virtuous men could be found) would they seek office? It was better to have politically ambitious folks, with compelling interests and causes, to advocate for themselves.

Findley anticipated what came to be: "the eventual weakening, if not the repudiation, of the classical republican ideal that legislators were supposed to be disinterested umpires standing above the play of private interests."

To return to Senator Manchin: his defenders invoke a coal industry that benefits families and businesses across West Virginia (and not simply his own business). His critics point to a transparent conflict of interest and decisions that result in significant environmental costs. We have a disagreement that can be contested in political campaigns and elections. That's the stuff of politics in American democracy.

Jackie Calmes, in a column in today’s Los Angeles Times (“Sen. Susan Collins: A profile in cowardice”), neatly captures why the senator is so infuriating to Democrats. Senator Collins portrays herself as a voice of reason, moderation, and bipartisanship. “I’m comfortable with the New England brand of Republicanism, which has always believed in personal responsibility, individual freedom, smaller government, lower taxes generally, economic growth, small business and most of all providing opportunity to people,” she insists (in an article Calmes links to). But when actually casting a vote in the Senate, she’s not much further from the center of the Republican Party than the likes of Senators Cruz, Hawley, Cotton, Johnson, and others in the caucus who are comfortable revealing a less moderate, more contentious partisanship in service of Donald Trump and the party he leads.

Calmes reminds us of a couple of episodes, which suggest that if we take the senator’s pronouncements at face value, she is the queen of wishful thinking. Recall: In spite of her support of Roe v. Wade, Collins voted to confirm Brett Kavanaugh because of his stated views on “settled law.” And, in voting to acquit Donald Trump in the first impeachment trial, she insisted that he had “learned a pretty big lesson,” adding, “I believe that he will be much more cautious in the future.”

But, of course, moderate, reasonable Republicans have been on this course for quite a while. Hark back to November 9, 2020: "What is the downside for humoring him for this little bit of time?"

Calmes again:

It turns out that Collins is little different from most politicians: She shies from stands that might threaten her career or political opportunities. Associates say she’s rationalized her wimpy opportunism, confident that she represents her state and region well, and certainly better than some right-wing Republican or liberal Democrat who might replace her if she were voted out.

Of course. That's to be expected (at least most of the time). But, as Calmes reminds us, the New England senator loves to place herself in the tradition of Margaret Chase Smith, who distinguished herself (and placed herself in considerable political jeopardy) by delivering her ‘Declaration of Conscience’ speech on the Senate floor. Collins, of course, has (like most Republicans in Washington) ducked and weaved to sidestep appeals to conscience.

It’s useful to recall Smith’s speech on a challenge to the Republican Party, which included these words:

I do not want to see the Republican Party ride to political victory on the Four Horsemen of Calumny: Fear, Ignorance, Bigotry, and Smear.

The stakes then, since Joe McCarthy was a single senator from Wisconsin who chaired a single committee for two years, were not as high as they are now. Today a prickly, lawless authoritarian is the undisputed leader of the national Republican Party.

Don't expect more than occasional, mostly tepid pushback from Susan Collins. Not while Trump remains ascendant. Like most elected Republicans, the costs for the GOP senator from Maine of stepping up to meet the moment are too high.

Yesterday, focusing on the 5-4 decision reinstating Alabama's racial gerrymander, I posted critical comments regarding the partisan majority that dominates the Supreme Court. In this morning's Los Angeles Times, Dean Edwin Chemerinsky, of Berkeley Law, offers an op-ed titled, "Conservative justices are helping elect Republicans". While Chemerinsky does not use Linda Greenhouse's raw power play language, he goes further than her in suggesting that their decision can hardly be understood as "anything other than an effort by the conservative justices to help Republicans in the midterms," concluding:

Now it appears that the conservatives are ready to limit the use of the Voting Rights Act to prohibit discrimination in redistricting. It is surely not coincidental that all of these rulings by Republican-appointed justices help Republicans in elections and hurt Democrats.
As Justice Elena Kagan wrote in her dissent, this ruling allows to stand a “violation of a law this Court once knew to buttress all of American democracy.” Time and again, the court’s conservatives have shown that they are perfectly willing to ignore this principle.

Linda Greenhouse, writing in the New York Times ("The Supreme Court Has Crossed the Rubicon"), never acknowledges the agenda of the Republican Party, but does excoriate the majority for trampling on established precedents, principles, and processes:

What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.

Further, she writes: "It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done."

This is such a distressing decision from a court determined to eviscerate the 1965 Voting Rights Act, which constituted a giant step toward democratic governance -- where no one was denied voting rights and representation because of race (consistent with the 15th Amendment) -- in the United States.

In an unsigned 5-4 decision, the Supreme Court overruled a 3-judge panel of the District Court, which had ruled that Alabama's redistricting plan constituted illegal racial gerrymandering, thus violating the Voting Rights Act.

Justice Roberts in dissent with Justice Kagan (see below) that the lower court's ruling was consistent with current Supreme Court precedent; thus, "the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction."

Justice Kagan, in a separate dissent (joined by Justices Breyer and Sotomayor), stated: "The District Court (including two judges from the State) found that the plan unlawfully diluted the votes of the State’s Black population, and ordered the State to devise a new plan for the 2022 elections."

While Justice Kavanaugh (joined by Justice Alito) issued a concurring opinion to the majority's unsigned ruling, he did not dispute Roberts and Kagan's judgement regarding precedent.

The subtext: the current Republican supermajority on the court (including Roberts) are poised to overturn previous Supreme Court rulings and federal law, though this will not happen until later this term or next. (Kavanaugh's concurrence denies any signaling by the court. Time will tell how credible his grumbling is.)

This majority isn't willing to wait. Five Republican justices are in a rush to overturn decades-long precedent without even a full briefing and presentation of arguments. (Roberts can wait; he'll choose whether or not to join his colleagues later. Past behavior -- and an aggressive aversion to the 1965 act -- suggests that he will be on board eventually.) These justices have made up their minds. Their ruling, when it comes, will almost certainly harmonize with the agenda of the Alabama (and national) Republican Party.

Justice Kagan's dissent concluded:

Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.

When Los Angeles Mayor Eric Garcetti was captured in a photograph with Magic Johnson and San Francisco Mayor London Breed -- all maskless -- at an NFL playoff game at SoFi Stadium, violating both California and County of Los Angeles mask mandates, he explained: “I wore my mask the entire game. And when people ask for a photograph, I hold my breath.” (Bill Clinton didn't inhale; the LA mayor didn't exhale.)

Richard Carpiano, a UC-Riverside professor of public policy and a public health scientist, observed, “It’s not sustainable and advisable to hold your breath.” Suggesting that Garcetti should have worn a mask, he commented, “So much about politics is about public relations and leading by example.” 

Mayor Breed and Governor Gavin Newsom (also pictured with Johnson), chronic scofflaws when it comes to masking, are -- with Garcetti -- abject failures in leading by example. Public officials who defy public policy lose credibility. This is not advisable, nor does it contribute to sustainable public policy. That's true of COVID mandates and recommendations.

More generally, such poor examples contribute to a cynicism regarding government and resistance to calls by public officials for people to step up for the common good. Defiance of public health mandates by elected officials casts doubt on the authority of science and medicine, which should undergird those mandates. This creates mistrust of states, cities, counties, and school districts when they seek to act in the public interest.

All this is bad for the Democratic Party, which relies on an activist agenda -- on enacting and implementing public policies (grounded in facts and evidence to establish their worth) to benefit Americans.

Yeah, of course, Republicans are worse. In a recent column Michael Gerson reviewed "three varieties of GOP political necromania."

To summarize Gerson's critique (with just a sentence or two about each variety, beginning with the version practiced by Ron DeSantis):

a) "In the name of freedom, politicians such as the Florida governor employ the power of their office to prevent other social institutions from taking responsible, lifesaving steps in the midst of a pandemic. This is an effort by populists to prove that their MAGA commitments outweigh all common sense, public responsibility and basic humanity."

b) "A second type of the Republican romance with death comes in the vilification of those most dedicated to preserving the lives of Americans. Public officials such as Sen. Rand Paul (R-Ky.) invent a conspiratorial backstory to the covid crisis and depict the most visible representatives of the United States’ covid response as scheming, deceptive deep-state operatives. Any change in emphasis or strategy by scientists — an essential commitment of the scientific method — is viewed as rich opposition research."

c) "A third category of Republican death wish is the practice of strategic ignorance. In a case such as Sen. Ron Johnson (R-Wis.) — America’s most reliable source of unreliable information about covid-19 — such ignorance might not be feigned."

As A.B. Stoddard observes ("COVID Derangement Is Working Out Just Fine for the GOP"), each of these approaches is a winner for Republicans:

You mix doubt with denial, look past the lost lives and then wait. When the infection spreads, the virus replicates and mutates, and new variants jolt the economy, you then blame President Joe Biden.
For nearly two years we have witnessed an entire cohort of Americans reject the social compact and discard the welfare of others, including their own loved ones. In the name of liberty they have proudly protected the rights of Americans to reject vaccines, refuse masks, spread the virus, demand expensive therapeutics, claim ICU beds, clog up hospitals, and gum up the economy.

These efforts advance the immediate political interests of the Republican Party, though they are antithetical to the welfare of Americans. They make it difficult for any party to unite the country (or a state or locality) to come together for the benefit of all. They disable the capacity of government to advance the public good.

Republicans have made a choice. By tearing down government, by casting doubt on science (and even in "our collective ability to distinguish truth from falsehood" in Jonathan Rauch's words), they seek to gain and hold political power.

Democrats' interests -- achieving public policy goals -- require viable, trustworthy political institutions. Democratic leaders should not be giving Americans reason to lose faith in government.

Donald Trump says he might pardon people who stormed the Capitol on January 6 trying to stop Congress from certifying the Electoral College victory of Joe Biden.

"If I run and if I win we will treat those people from January 6 fairly," President Trump says during a rally on Saturday.

"And if it requires pardons we will give them pardons because they are being treated so unfairly." https://t.co/asYpKXv9cs

— NBC News (@NBCNews) January 30, 2022

His pardons in the last few hours before vacating the White House included many cronies, notably including accused crook Steve Bannon, who served as Trump's chief strategist. Earlier beneficiaries of Trump pardons included two convicted criminals -- Roger Stone and Paul Manafort -- who refused to testify against the 45th president.

More recently Trump acknowledged that the machinations focused on January 6 were designed to overturn the election that he lost. Trump issued a statement asserting that on January 6 "Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!" (The full "Statement by Donald J. Trump, 45th President of the United States of America" has been removed by the former president, but Adam Kinzinger captured the original press release.)

Meanwhile, an Arizona state representative has introduced a 35-page bill rewriting the state election laws. Republican John Fillmore, who discounts evidence that there was no election fraud in 2020, insisted, “We need to get back to 1958-style voting.” (That would be seven years before passage of the 1965 Voting Rights Bill.) More significant than imposing restrictions on voting, Fillmore's proposed legislation would direct the legislature to call itself into special session after each election to "accept or reject the election results."

This accords with Trump's view that, "Sometimes the vote counter is more important than the candidate."

Trump tells PA GOP why he is placing an emphasis on Supervisor of Elections races in 22: “We have to be a lot sharper the next time when it comes to counting the vote .. Sometimes the vote counter is more important than the candidate. They have to get a lot tougher and smarter.” pic.twitter.com/WdzStuLxFH

— Ron Filipkowski (@RonFilipkowski) January 15, 2022

Another Arizona Republican in the state legislature, Mark Finchem, who was at the Capitol on January 6, has appeared at QAnon conferences, and insists that the 2020 election was "irredeemably compromised," is running for Secretary of State of the Grand Canyon State -- so he can oversee future elections. He is among at least 20 secretary of state candidates across the country who question the legitimacy of Joe Biden's election. (NPR has a list.)

Today, the national Republican Party -- committed, first and foremost, to defending their leader, who lost the 2020 election -- passed a resolution censuring Liz Cheney and Adam Kinzinger for their participation in the committee investigating the January 6 Capitol riot. The resolution disregards the lawless violence, the deaths that resulted, the injuries to police officers, the destruction of property, the chants of "Hang Mike Pence" (as the Vice President and his family were escorted from danger by the Secret Service), and the memory of House and Senate members fleeing in fear, insisting that the committee's investigation is a “Democrat-led persecution of ordinary citizens engaged in legitimate political discourse.”

The Grand Old Party is committed to restricting American voters' right to cast ballots, changing election laws to make it simpler for state legislatures to overturn election results, and doing its utmost to whitewash political violence in defiance of the Constitution and the rule of law.

"Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces and insulated from responsibility for any damage it causes?"

-- Justices Breyer, Sotomayor, and Kagan dissenting in NFIB v. OSHA (January 13, 2022)

Linda Greenhouse highlighted that passage in her recent tribute to Stephen Breyer and his passionate devotion to the Constitution, which he views as "an engine of progress." She writes, "That this argument failed to carry the day speaks volumes not only about how out of step Justice Breyer is with the court’s trajectory but also how out of step the majority is with the kind of fact-based analysis that he has brought to the problems the court is charged with solving."

Ideally, justices would look to the facts and the law when issuing decisions. Not so with the current supermajority on the court. Instead, as I noted recently, they simply make things up.

As Scott Lemieux put it ("A Right-Wing Supreme Court Keeps Pretending Laws Say Things They Do Not"):

The Supreme Court’s recent decision in NFIB v. OSHA, which blocked enforcement of the Biden administration’s test-or-vaccinate mandate for large employers, is disastrous because it will result in more avoidable COVID-19 deaths. But it is also disastrous because it heralds an emboldened conservative Supreme Court eager to ignore the text of statutes to impose its own views of public policy on the public.

The Republican nominees claim to do this in the name of protecting the prerogatives of the people’s elected representatives. This is a cynical inversion of the truth: The only power the Court is protecting is its own.

Lemieux describes the same duplicitous approach regarding voting rights. I've written more than once about John Roberts' decades-long campaign to disable the 1965 Voting Rights Act. As Lemieux notes, while working in the Reagan White House, Roberts urged Congress to require a showing of discriminatory intent to find violations of the Voting Rights Act; Congress rejected this approach; Roberts and the court's conservative eventually imposed the requirement in Brnovich v. DNC (employing "mostly made-up factors," as Justice Kagan noted in her dissent).

Lemieux again:

In essence, a six-justice conservative supermajority “interpreted” the Voting Rights Act as if Roberts had prevailed in 1982, when in fact Congress had repudiated his vision for what the law should look like. The same is true of the Court’s opinion in NFIB: None of the “rules” are found in the text of the statute. They’re simply meant to frustrate the will of Congress whenever Congress does something that leads to results the justices don’t like.

NFIB and Brnovich are especially ominous for American democracy because they leave Congress with no outs. Courts that willfully ignore the text and purpose of major statutes are an existential threat to democratic self-rule, because even if majorities can surmount the formidable obstacles to legislating, Republican-controlled courts can simply rewrite the law to suit their own preferences. In his concurrence in NFIB, Justice Gorsuch claimed to be standing up for “the people’s elected representatives in Congress.” In reality, the Court has found another way to consolidate power in itself. 

Paul Campos observes (at Lawyers, Guns & Money): "John Roberts and the Furious Five have ruled that because in 1970 Congress didn’t have the foresight to pass a statute that specifically said that Joe Biden could tell OSHA in 2021 to issue a vaccine mandate because of COVID-19, Joe Biden can’t do that. This is a consistent application of the Republican Supreme Court’s doctrine that statutes written in general terms to deal with a wide variety of issues can only be enforced by Republican administrations."

That aptly summarizes conservatives' goal of crafting a partisan constitution.

A former Speaker of the House is threatening jail time for members of Congress who are investigating the violent January 6 attack on our Capitol and our Constitution.

This is what it looks like when the rule of law unravels. https://t.co/vpQZjTg9em

— Liz Cheney (@Liz_Cheney) January 23, 2022

Newt Gingrich was an innovator. A party leader (however briefly), he brought a revolution to the Republican Party and to the country. The hate, disinformation, polarization, and division we're living with today stems from the man who served as Speaker of the House for four years more than two decades ago. He had a powerful assist from Rupert Murdoch and Roger Ailes, and today Gingrich's influence is overshadowed by that of Fox News Network, which is king of the conservative media universe that serves to drive the divisions that the GOP relies on and often to set the party's agenda.

In a 2018 article, written not quite two years into the Trump presidency, about disinformation ("a national-level epistemic attack: a systematic attack, emanating from the very highest reaches of power, on our collective ability to distinguish truth from falsehood"), Jonathan Rauch asked, “Will Trump and the trolls triumph?” His answer:

I doubt it. Weaponized trolling has enjoyed the advantage of surprise, but as that diminishes, the troll army will encounter a disadvantage. Trolls have swarms, but the constitution of knowledge has institutions.

He's right, I believe, to look to institutions as crucial. Steven Levitsky and Daniel Ziblatt sustain a focus on institutions (and institutional failures) throughout their book, How Democracies Die, beginning on page 2:

American politicians now treat their rivals as enemies, intimidate the free press, and threaten to reject the results of elections. They try to weaken the institutional buffers of our democracy, including the courts, intelligence services, and ethics offices. American states, which were once praised by the great jurist Louis Brandeis as "laboratories of democracy," are in danger of becoming laboratories of authoritarianism as those in power rewrite electoral rules, redraw constituencies, and even rescind voting rights to ensure that they do not lose.

Another recurring theme of Levitsky and Ziblatt's remarkable book (published on January 16, 2018, marking not quite the end of Trump's first year in office) is the critical role of party leadership -- and the continuing failure of GOP officials to lead by standing up for democratic norms and institutions. The Gingrich rhetoric of the 1990s pales in comparison to the language of today's Republicans in Congress and statehouses across the country (and on cable television). Republican voters are drenched in disinformation, fear, and hate, while GOP leaders are afraid to contradict the lies that have become entrenched within the party.

Here's what Rauch's contrast -- between trolls with swarms, on the one hand, and journalism, academia, and science bolstered with institutions, on the other -- overlooks: it is not individual trolls (not even Donald Trump) that drive disinformation. It is institutions.

Fox News Channel is an institution. A popular, influential, sustainable institution. The Republican Party is an institution. The party that will be empowered whenever the Democratic Party loses favor in a closely divided country.

There is no way that internet trolls (posting on Facebook or Twitter or reddit) could convince most Republican voters that their prickly leader won the 2020 presidential election. It is Republicans in Congress who appear on Fox News. Not just the crazies who spread the most wild tales, but the leaders (even those who duck and dodge to avoid outright lies) who won't straightforwardly acknowledge the truth. It is Republican governors and state legislative leaders whose agenda makes little sense apart from the lies and conspiracy theories. (There is no room for dissent. Liz Cheney and Adam Kinzinger, among others, find themselves on the outside of Trump's party looking in.)

An authoritarian political party threatens our democracy. This isn't a case of trolls vs. institutions. It's institutions vs. institutions. I am in agreement with Kevin Drum (who doesn't overlook Gingrich's role): Fox News is the principle source of division in the United States. This chart from Drum sums things up:

Ronald Brownstein, writing in the Atlantic ("How Manchin and Sinema Completed a Conservative Vision”), traces “a resounding triumph for Chief Justice John Roberts in his four-decade quest to roll back the federal government’s role in protecting voter rights.”

In a series of rulings over the past 15 years, the Supreme Court, often in decisions written by Roberts himself, has consistently weakened federal oversight of voter protections and struck down federal regulations meant to reduce the influence of money in politics. Almost all of those decisions have unfolded on a strict party-line basis, with the Republican-appointed justices outvoting those appointed by Democrats.
Those decisions have had an enormous practical impact on the rules for American elections. But many voting-rights advocates say that the rulings have been equally important in sending a signal to Republican-controlled states that the Supreme Court majority is unlikely to stand in their way if they impose new restrictions on voting or extreme partisan gerrymanders in congressional and state legislative districts.

Roberts’ relentless quest to stifle voting rights goes back decades (to his service in Reagan’s White House). Brownstein observes:

Roberts, who served as a young clerk to conservative Supreme Court Justice William Rehnquist and as a Justice Department assistant in the Reagan administration, has long expressed hostility to federal oversight of voting and election rules. As the journalist Ari Berman recounted in his 2015 book, Give Us the Ballot, Roberts “led the charge” against the bipartisan 1982 reauthorization of the Voting Rights Act, which ultimately reversed a Supreme Court decision (supported by Rehnquist) weakening one key section of the law. Roberts wrote “upwards of 25 memos” opposing the legislation’s provision requiring that the Justice Department prove only discriminatory “effect” rather than purposeful “intent” in order to block state or local voting restrictions. (The Court had ruled the opposite, severely limiting the law’s applicability.)

Roberts’ animus has been unwavering:

That approach has guided Roberts on the Supreme Court. As the Harvard Law School professor Nicholas Stephanopoulos, an expert in voting law, wrote in a 2019 law-review article, “The Roberts Court has … never nullified a law making it harder to vote.” To the contrary, in a series of landmark decisions, it has nullified efforts to ensure voter access, combat gerrymanders, and to limit political contributions and spending.

While the Chief Justice (with other justices) insists that the court is not partisan, in the most consequential rulings on voting rights, campaign finance, and gerrymandering – Shelby County v. Holder; Citizens United v. FEC; Rucho v. Common Cause; Brnovich v. Democratic National Committee – the court has split strictly along partisan lines (with one exception): every conservative (that is, Republican-appointed) justice has ruled in favor of the Republican Party’s agenda and every liberal (Democratic-appointed) justice has dissented. (The single exception: John Paul Stevens joined the liberal justices in the minority in opposing Citizens United.)

In cases where no liberal justices can be found in the majority, this Republican-dominated court takes sides nearly unerringly with the Republican Party. There is no legal theory, judicial principle, or constitutional basis, and certainly no commitment to calling balls and strikes, that better explains how the conservative majority’s agenda – in the cases it takes and the decisions it hands down – coincides so well with the agenda of the contemporary GOP.

OSHA rule to protect American workers

Consider last week’s granting of a stay in NFIB v. OSHA. As Linda Greenhouse observes ("What the Supreme Court's Vaccine Case Was Really About"),

The fact is that this dispute — which, remarkably, found 27 states aligned against the federal government — was never principally about the vaccine. OSHA’s “emergency temporary standard,” under which employers of 100 or more people were to require vaccination or weekly testing, was mainly a target of opportunity. It offered the conservative justices a chance to lay down a marker: that if there is a gap to fill in Congress’s typically broadly worded grant of authority to an administrative agency, it will be the Supreme Court that will fill it, and not the agency. “Placing constraints on the administrative state,” as Eugene Scalia, Justice Antonin Scalia’s son and secretary of labor during the last year of the Trump administration, observed in a Wall Street Journal op-ed in praise of the decision, is “a defining concern of the Roberts court.”

This court aims to do what Republicans who seek elective office – to the presidency and the Congress – have failed to do: to hack back against Democratic policies that GOP party leaders and donors don’t like. This is a court determined to impose a partisan constitution on the country. The court’s conservative majority seeks to disable (small-d) democratic politics, imposing constraints not found in the constitution or in federal statutes. These constraints serve to rule Democratic policy choices out of order; thus, the court's decisions advantage the Republican Party at the expense of the Democratic Party (regardless of which party wins elections).

By a 6-3 vote the conservative justices granted a stay to an emergency OSHA rule to protect American workers from infection by COVID. Justices Breyer, Sotomayer, and Kagan began their dissent with the recognition of the human toll brought on by the pandemic:

Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers. The disease has by now killed almost 1 million Americans and hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.

Pretext, not text

Conservatives have affirmed for decades that they rely on close reading of the text (‘strict constructionism’) of the Constitution and of federal statutes, in interpreting the law. That's not evident in this case. The three liberals, writing in dissent, noted that, “OSHA’s rule perfectly fits the language of the applicable statutory provision.” They demonstrate this, phrase by phrase: “new hazard,” “physically harmful,” “grave danger,” “necessary,” and so on. In their deliberate, conscientious assessment, they show that the rule perfectly fits the language of the statute.

While the statute in simple, unambiguous language "plainly authorizes" the rule, the six conservative justices object by departing from the text of the statute and inventing a new standard:

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

In 1970, when Congress passed the Occupational Safety and Health Act, it did not foresee the pandemic that began in 2019. Contrary to the court's conservatives, the law Congress passed offers "clear congressional authority" to provide broad protection to American workers from hazards encountered on the job. Since a once in a century pandemic, often spread person to person in workplaces across the country, could not be foreseen, Congress delegated authority to an executive agency to step into the breach.

As the dissenters noted, most folks have little control over their workplaces. (In contrast, compare how thoroughly the justices can and do insulate themselves from harm.) Americans can choose not to eat in a restaurant, go to the movies or a gym, attend church or a concert, or venture anywhere else "that people gather" -- unless they are supermarket cashiers, waitresses, retail clerks, bus drivers, or millions of others who must go to work. These folks rely on OSHA to provide a safe working environment. The conservative justices offer not a whit of empathy or consideration for such working Americans. Echoing right wing talking points, the conservatives characterize the mandate (even with medical and religious exemptions) as an onerous imposition:

A vaccination, after all, “cannot be undone at the end of the workday.”

Nor, of course, can acquiring an infection while on the job. Not every one of the 850,000 Americans who have died of COVID were infected at work or (as with a supermarket customer) at someone else's workplace. It's likely, though, that tens of millions of Americans got infected at their (or someone else's) workplace.

Unbounded arrogance

The conservative justices note:

We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.… For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.…
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.

"It is not our role to weigh such tradeoffs." Six unelected, unaccountable justices -- with substantial control over their own working environments, ensuring their own protection -- bar an elected Congress from requiring safe workplaces for millions of Americans during a raging pandemic. Protecting Americans from disease and death takes a back seat to the conservative legal movement's campaign to place constraints on the administrative state.

More shameful still: three justices would have gone further. Justice Gorsuch's concurring opinion (joined by Justices Thomas and Alioto) invokes "the nondelegation doctrine," which is to be found nowhere in the Constitution. It is an invention of ideological, results-oriented conservatives who disfavor government regulations, including health and safety protections. This threesome appears ready to impose a much more sweeping prohibition on the ability of the legislative and executive branches of government to enact and enforce regulations to protect the public.