democratic impasse.com

John Harris is befuddled by our current political situation – “a conflict so profound that, as in the 1860s, democracy, constitutional order and union itself are in peril.” Harris marvels: “A big deal, indeed. But also a puzzle: If this is a 21st century version of 19th century disunion, shouldn’t it be more obvious what the war, at bottom, is all about?”

Kevin Drum, using Harris’s question as a jumping off point,  examines “the two most obvious candidates: race and money, with a focus on white men since they're the ones who seem most discontented.” After brief consideration of each candidate, Drum sums up:

The conclusion here is hard to avoid: neither racial animus nor worries about jobs and the economy seem to have recently skyrocketed among large numbers of white Americans. It's hard to believe that either of these things, on their own, are what's torn the country apart. There must be something else at work.
But what?

Multiethnic democracy

While it’s surprising that anyone who has listened to Donald Trump’s grievances during the past decade – from his role as the chief advocate of birtherism, to Mexican “rapists,” to “shithole countries,” to the “invasion” at the Southern border that led to the separation of children from their families, to tirades directed at women of color in the House – could have doubts about what at bottom divides our country, as it happens political scientists, drawing on ample research dating back a decade, have an answer.

There is a division between a party that embraces multiethnic democracy and a party dominated by white Christians with ‘traditional’ views of a racial and gender hierarchy. No matter what zigs and zags Trump takes, Trumpism is animated by hostility toward the other, a rejection of political opponents as not real Americans. Inclusive Democrats are committed to the equality of all, encompassing groups of Americans that Trump and his base regard as illegitimate.

Here is how Lilliana Mason, Julie Wronski and John V. Kane described the division on January 3 for readers of the Washington Post (“Republicans and Democrats have split over whether to support multiethnic democracy, our research shows”):

A democratic system of government ideally affords all citizens equal representation and protection, regardless of race, ethnicity, religion, income, gender, or other areas of difference. That has not always been the case in U.S. history, which has included official and unofficial prejudice, hatred and violence toward non-White, non-Christian citizens, manifested in such ways as Jim Crow laws and the Chinese Exclusion Act, racial profiling, and anti-Muslim and anti-LGBTQ hate crimes. While civil rights legislation and court decisions reduced some discrimination in recent decades, U.S. society continues fiercely debating whether to strive toward guaranteeing equal protection under the law and voting rights for all Americans.
That debate now divides the United States’ two major parties. The Democratic Party tends to push for further advances in the pursuit of racial and gender equality. The Republican Party tends to resist such change, sometimes even leaning toward a past when White, Christian men stood unquestioningly at the top of the American social hierarchy. The phrase “Make America Great Again” invokes that time in a tacit endorsement of democratic backsliding.

John Harris referenced a long list of possible answers to his question: “globalism and selfish elites,” “resentment of trade and the decline in real wages,” and dislike of “the cultural ascension of women and African-Americans and the diminution of working class white males. And so on.” He granted that all were “semi-plausible.”  He rejected them all, however unconvincingly, because of “Trump’s zigs on one day and zags the next.”

Kevin Drum’s rejection of race and money as an answer hinged on the absence of any significant changes, as recorded on five charts, at the time of Trump’s ascent. Racial resentment among whites has not mushroomed since 2015, nor has the economic distress of working Americans.

Activating animus

Again, political science has an answer. Research suggests that neither Trump’s candidacy, nor presidential term, or nor continued domination of the Republican Party has increased the prevalence of white racial resentment. There was a reservoir of racial resentment within the American electorate before Donald Trump, including animosity toward the African American, Hispanic, Muslim, and LBGTQ communities. His candidacy and campaign mobilized voters harboring this animus. From the aforementioned analysis:

In our research, we found that Donald Trump’s politics activated and attracted the MAGA faction – a group that had not been securely attached to any particular party.
We used data from the Democracy Fund’s Voter Study Group survey, which interviewed the same Americans repeatedly between 2011 and 2018, and continues to do so. This publicly available data acts somewhat like a time machine, allowing us to identify the common characteristics of Trump supporters before Trump announced his candidacy. We found about 30 percent of Americans surveyed in 2011 reported feelings of animosity towards African Americans, Hispanics, Muslims, and the LGBTQ community. These individuals make up our MAGA faction. Members of the MAGA faction were approximately 25 percent more supportive of Trump in 2018 than everyone else in the survey, even after taking into account many other factors, including partisanship.
This relationship between hatred and political support does not exist for other Republican leaders. We found that 2011 animosity toward these groups did not predict later approval of Mitch McConnell, Paul Ryan, or the Republican Party. Only Trump was linked to bias.
No Trump-like figure emerged among Democrats. Rather, pre-existing animus towards these four groups consistently predicted less support for prominent figures in the Democratic Party. Nor did we find that disliking Whites or Christians – groups associated particularly with the Republican Party — in 2011 predicted higher support for Democratic leaders. Trump was unique.
Our findings reveal that Trump did not himself create this animosity; he merely harnessed it and benefited from it politically.

They offer this chart:

We should give credit to John Sides, Michael Tesler, and Lynn Vavreck, who drew on many of the same sources (including the Voter Study Group) for their 2018 book Identity Crisis: The 2016 Presidential Campaign and the Battle for the Meaning of America, which offers a book length account of how Trump’s message of white America under siege, sharply at odds with Hillary Clinton’s appeals to diversity, resonated with his voters (many of whom had voted for Obama just four years earlier).

They write (in Chapter 8, “What Happened”), “The campaign’s focus on identity-inflected issues—and Clinton’s and Trump’s sharply divergent positions—led voters to perceive Clinton and Trump as farther apart on these issues than any major-party presidential candidates in over forty years.” Moreover, “In turn, voters’ attitudes on these issues became more strongly related to how they voted in 2016 than in recent presidential elections.”

Trump still dominates the Republican Party. The issues he brought to the fore continue to divide Americans.

Justice Gorsuch wore no mask during oral argument yesterday, the only justice to openly defy the rules, on a day they were considering Covid cases. After all, who’s going to make him? The focus on “me” over “we” is emblematic of what is wrong with America. https://t.co/GR1rCHuRLS

— Barb McQuade (@BarbMcQuade) January 8, 2022

Vaccination is far and away the best method for combating the out of control pandemic that is filling hospitals to capacity and has already killed well over 830,000 Americans. Republican governors, other officials, and candidates, as well as the talkers in conservative media (from Fox News Channel on down the food chain) rage against vaccine mandates (even with exceptions for resisters to test regularly). The Biden administration has sought, through OSHA regulations, to protect American workers (and, of course, their customers, families, and neighbors). Based on arguments heard yesterday, I anticipate (with most observers) that the Republican majority on the Supreme Court will agree to issue a stay on this regulation.

First of all, this is consistent with the crusade of the conservative legal movement (led by the Federalist Society) to reign in the modern administrative state. By doing so they intend to take us back, step by step, to the Lochner Era, that is, the pre-FDR court.

None of the members of the majority will have a tinge of regret that their decision will benefit the agenda of the Republican Party and harm a Democratic president.

Second, these ideologues will not be deterred in the slightest by the adverse effects, no matter how severe, of their ruling on working men and women in the country, of the American public, or of the continuing social disruption the pandemic exacts.

I'd like to offer reflections on the second point.

When casting a vote may threaten your life: Recall the April 6, 2020 SCOTUS ruling when the Republican justices won the day (Republican National Committee, Et Al. v. Democratic National Committee, Et. Al.). It was a 5-4 ruling, when Justice Ruth Bader Ginsburg, who wrote the dissenting opinion, was still alive.

At a time when COVID was raging in Wisconsin and the primary election less than a week away, thousands of mostly Democratic voters had not received the absentee ballots they had requested. A federal judge had agreed to allow absentee ballots received six days after the statutory deadline to be counted. The Republican SCOTUS majority, opining that the case turned on a "narrow, technical question," granted the stay requested by the Republican National Committee. The unsigned opinion gave nary a nod to concerns with public safety. Nor with the right to vote.

Justice Ginsburg's dissent (joined by Justices Breyer, Sotomayor, and Kagan) concluded with these words:

The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.
* * *
The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be  possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.

The justices can insulate themselves from harm. Turning to January 2022, let's note that all the justices have been fully vaccinated and boosted. Because of COVID, the Supreme Court building is closed to the public. Although the building if open for official business, no visitors are allowed. All public lectures and visitor programs have been suspended.

The Supreme Court requires all counsel and co-council appearing before the court to test for COVID a day in advance. Anyone testing positive, must appear remotely. Attorneys who appear in person must wear masks (either an N95 or KN95)-- except when speaking. When they conclude, they must leave the courtroom and the building immediately.

The justices, with the exception of Justice Sotomayor (who has a pre-existing condition that makes her highly vulnerable to an infection), have been hearing cases unmasked. During Friday's argument, Justice Sotomayor chose to participate remotely from her office; seven justices wore masks; Justice Gorsuch did not.

Long story short: the justices can dictate the terms of their work, place conditions on their working environment, and protect themselves by any means (vaccines, masks, social distancing, working remotely, and barring public access to the building) that scientific understanding prescribes. For the vast majority of workers in America, this is not the case. In the absence of health and safety regulations, most folks don't have much say regarding their working environment. And the vast majority of workers perform tasks that can't be done remotely.

Fox News protects its own. The situation of the justices is analogous to that of the Fox News Channel's prime time stars. As early as spring 2020 (when Donald Trump as president knew, but was not acknowledging, the dangers COVID posed), Fox News was deep cleaning surfaces in its offices; the protocol included daily sanitizing and disinfecting several times a day. By the end of summer 2021, Fox had required all employees to report their vaccination status. Within a short time, 90% of its employees had been vaccinated, and Fox required the others to test for COVID daily. That hasn’t stopped Tucker Carlson and other FNC personalities from spewing disinformation about vaccines.

There is no surfeit of empathy for the American public among the leadership of the Republican Party. Not in Congress, not in governors' mansions or state legislatures, not on cable TV, and not at the United States Supreme Court under Republican control.

In yesterday’s New York Times (“A.O.C. and Manchin Are in the Same Party. No Wonder Democrats Are Struggling”), Julia Azari notes that “Democrats are weathering a storm of accusations of being plain bad at politics” and offers a crisp analysis of why the Biden administration is struggling with its legislative agenda.

Two transformational Democratic presidents, Franklin Roosevelt and Lyndon Johnson, wrestled (like Joe Biden) with a broad coalition represented by contrasting interests and viewpoints, but both had much larger Congressional majorities to work with. Nationalized politics has led the Manchins and Sinemas of the party to “work harder to draw media attention to their performances of political independence” in resisting the president and the leadership in Congress. And a stronger left wing in the party grapples with a conservative Democratic flank, while traditional liberals must contend with progressives.

For today’s “smaller, patchwork Democratic coalition,” delivering on its promises is tough going (especially since Republicans are more likely to offer relentless obstruction, than votes). Azari offers a couple of ways out for Democrats.

Strengthen social movements

The first is to strengthen social movements, which could advance progressive issues such as green energy and student debt, assist in electing progressive Democrats, and “help to mobilize different groups of voters around shared priorities like health care and economic insecurity.”

Elevating progressive issues on the public agenda and pressing the boundaries of political debate could serve to bolster the Democratic coalition. In Barack Obama’s words (regarding young uncompromising activists):

There’s a different role for activists as opposed to people once they’re actually elected in Congress trying to get a bill passed. And there are going to be times when young people are impatient or consider themselves obligated to speak truth to power even if it might offend some swing voters somewhere. That kind of messiness is okay. Because what they’re doing is stretching the boundaries over time of what’s possible.

Enact structural reforms

Azari’s second route is to implement institutional reform, including changing rules in the Senate (such as the filibuster) that prevent majority rule, and “making Congress more proportional.” (Though she doesn’t say how to do the latter, presumably she is thinking of reforms such as expanding the size of the House, enacting statewide proportional representation in the House, and adding states to the union to make the Senate less malapportioned.)

Pointing to “the influence of wealthy interests over public opinion,” she observes that both Manchin and Sinema have strong ties to powerful interests opposed to the interests of Democratic constituents not among the elite. She suggests structural solutions, such as “tightening regulations over conflicts of interest for members of Congress and enacting lobbying reform.” In the absence of such reforms, powerful interests (aided and abetted by a stridently conservative Supreme Court) can veto popular legislative initiatives.

The alternative path for Democrats is to “scale back on its policy agenda,” which is probably the route Democratic leaders will take in trying to revive Build Back Better in the next few weeks, but this is hardly a viable, long-term solution.

Big-D and small-d democrats

There is only one political party in our country today committed to democracy. The Democratic Party. That’s why this discussion of party strategy is so critical to the country’s future.

"On Tuesday of this week, Senator Manchin came to the White House and submitted—to the President, in person, directly—a written outline for a Build Back Better bill that was the same size and scope as the President’s framework, and covered many of the same priorities. While that framework was missing key priorities, we believed it could lead to a compromise acceptable to all. Senator Manchin promised to continue conversations in the days ahead, and to work with us to reach that common ground. If his comments on FOX and written statement indicate an end to that effort, they represent a sudden and inexplicable reversal in his position, and a breach of his commitments to the President and the Senator’s colleagues in the House and Senate."

-- Statement from Press Secretary Jen Psaki, December 19, 2021

I can't recall ever seeing a statement from a Democratic White House regarding a Democratic Senator that approaches Jen Psaki's rebuke of Joe Manchin, who gave an emphatic thumbs down to Build Back Better on Fox News this morning. It attests to his bad faith, knocks down specious arguments, and makes clear -- not in a paragraph or two, but in a critique stretching nearly two pages -- that Manchin went back on his word to the President of the United States.

The immediate consequence is that President Biden's signature legislative initiative is dead.

I've given the senator the benefit of the doubt for many months. Joe Biden received 29.69% of the vote in 2020 in West Virginia. That a Democrat represents the state in the U.S. Senate is as anomalous as the election of two Georgia Democrats to the chamber in 2021. Manchin has been a Democrat throughout his career. If his vote ever killed a critical initiative of a previous Democratic president, I can't recall it. (Though perhaps that's because it is rare to have a50-50 Senate.) For all the qualms and qualifications, inconsistencies and departures from the facts that he has voiced in 2021 regarding BBB, he pledged to do all he could to reach an accord -- as recently as this week in the White House.

This morning he went back on his word.

Reading the tea leaves

[Revised:] At this point in my initial post, I offered observations -- centered on Mitch McConnell -- on the possibility of Joe Manchin switching parties. Long story short: McConnell as majority leader (though he is among the few Republicans in Washington who will acknowledge Trump's 2020 defeat) would be a setback for democratic governance. I've decided that this is a theme better explored in future posts than at this juncture.

I'll add (regarding the prospects for American democracy) that the success of the Democratic Party, which is committed to (small-d) democratic principles, the rule of law, free and fair elections, majority rule, and the peaceful transition of power, is the only check on the GOP, which has become openly authoritarian. Agreement between Biden and Manchin would advance the interests of Democrats and democrats (and might lead to the resurrection of BBB).

“Mark, the president needs to tell people in the Capitol to go home. This is hurting all of us. He is destroying his legacy.”

--Text from Fox News' star personality Laura Ingraham to Chief of Staff Mark Meadows while Donald Trump stood by as rioters stormed the Capitol on January 6 (as read on the House floor by Representative Liz Cheney).

Conservative Jonah Goldberg (until recently a Fox News contributor) comments on this text (and those sent to Meadows by Sean Hannity and Brian Kilmeade):

The significance of those texts isn’t that they recognized the truth of that day. What’s relevant is the contrast of that private behavior with their public behavior over the 11 months that followed.
. . .
Last night, Laura Ingraham made a huge deal of the fact that she condemned the violence on her show on the evening of January 6. . . .
What she didn’t say is that the mob’s passions boiled over because of Donald Trump’s lies—and the megaphone she and her colleagues gave to those lies. From her texts it’s reasonable to assume that she believed—rightly—that this mob was Trump’s to command because the mob believed it was doing Trump’s bidding.
But that truth is what she left out that night—and, as far as I can tell, every night since. In other words, the central truth of the texts isn’t that what the mob was doing was condemnable, but that Trump was responsible for the condemnable behavior.

Trump was responsible (as Kevin McCarthy, Lindsay Graham, and countless other Republicans initially acknowledged after January 6 before turning their backs on truth). And of course, as Goldberg describes, there's FNC's inevitable whataboutism to evade the truth:

The whole point of these whataboutist games is to exempt yourself from consistency. If your only goal in pointing out this double standard is to let Trump off the hook for arguably worse behavior, you’re adopting the same double standard you claim to be condemning. 
This kind of thing has been the overriding ethos of Fox opinion hosts and pundits for five years (with a few honorable exceptions). It wasn’t always explicitly whataboutist. Sometimes the whataboutism was simply implied. Don’t talk about Trump’s lies, mistakes, or misdeeds, just focus on the hypocrisy or hysteria of liberals who point out Trump’s lies, mistakes, or misdeeds. Sometimes the technique becomes so ingrained there’s no double standard at all, simply a ridiculous non-sequitur. “Democrats are arguing that Trump welcomed and incited a violent incursion into the Capitol,” Laura Ingraham once fumed, “when it is they who are enticing illegals to bust through our borders, exploit our resources, and commit crimes.” Uh, what?

Frank Bruni sums up Fox News' critical role in promoting the Big Lie and the consequences:

You can delve into the weeds of this or you can pull back and survey the whole ugly yard. And what you see when you do that — what matters most in the end — is that Fox News has helped to sell the fiction that the 2020 election was stolen from Trump, and there’s a direct line from that lie to the rioting. There’s a direct line from that lie to various Republicans’ attempts to develop mechanisms to overturn vote counts should they dislike the results.
That lie is the root of the terrible danger that we’re in, with Trump supporters being encouraged to distrust and undermine the democratic process. And that lie has often found a welcome mat at Fox News.

Adam Serwer observes that lies -- outrageous, deliberate, conscious lies -- are indispensable to Fox News' popularity as king of conservative media:

It’s common to say that conservatives distrust the media, but conservative viewers trust Fox about as much as Democrats trust CNN. The fact that its most popular personalities consciously lie to their audiences has not diminished that trust; it has made Fox the most successful cable-news channel. It is difficult then, to argue that inaccuracy is what has eroded other outlets’ trust with conservatives—the reverse is true. More factual coverage would not strengthen Fox News’s bond with its viewers; it would likely drive them elsewhere. The outlet shapes this demand, but it also bends to it.
A conservative news outlet that sought to compete on accuracy would maintain standards of rigor that would not allow its most famous ambassadors to knowingly lie to their viewers, or it would sanction them for doing so. But Fox News understands that its success depends on maintaining a fantasy world, rather than doing anything to disturb it. This is why some of its most marquee personalities, who shared the same horror as most other Americans at the events of January 6, caked on their makeup, stared into the camera, and lied to the people who trust them the most. What makes Fox News unique is not that it is conservative, but that its on-air personalities understand that telling lies is their job. Their texts on January 6, and their conduct since, leave no other conclusion.

Fox News' stars understand that telling lies is their job. FNC strives to maintain a fantasy world, which brought us the Big Lie, a Republican base convinced of the Big Lie, the January 6 storming of the Capitol, voter suppression, and a scramble to change state laws to permit (small-d) democratic elections to be overturned by Republican officials and state legislatures.

Our democracy is in peril. The conservative media universe, with Fox News Channel at the pinnacle, has peddled -- and often manufactured -- the lies that got us here.

Barton Gellman, in a review of the events leading up to, and following, the January 6 insurrection ("Trump’s Next Coup Has Already Begun"), describes the dire threat to our democracy as we approach the next presidential election:

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

. . .
As we near the anniversary of January 6, investigators are still unearthing the roots of the insurrection that sacked the Capitol and sent members of Congress fleeing for their lives. What we know already, and could not have known then, is that the chaos wrought on that day was integral to a coherent plan. In retrospect, the insurrection takes on the aspect of rehearsal.
. . .
To understand the threat today, you have to see with clear eyes what happened, what is still happening, after the 2020 election. The charlatans and cranks who filed lawsuits and led public spectacles on Trump’s behalf were sideshows. They distracted from the main event: a systematic effort to nullify the election results and then reverse them. As milestones passed—individual certification by states, the meeting of the Electoral College on December 14—Trump’s hand grew weaker. But he played it strategically throughout. The more we learn about January 6, the clearer the conclusion becomes that it was the last gambit in a soundly conceived campaign—one that provides a blueprint for 2024.
The strategic objective of nearly every move by the Trump team after the networks called the election for Joe Biden on November 7 was to induce Republican legislatures in states that Biden won to seize control of the results and appoint Trump electors instead. Every other objective—in courtrooms, on state election panels, in the Justice Department, and in the office of the vice president—was instrumental to that end.

The essay underscores (as does a story from yesterday's New York Times, which also notes there has been virtually no push back against the Republican campaign to purge election officials who didn't embrace the Big Lie and to "assert more control over election systems and results by partisan offices that Republicans already decisively control") the urgency of the imminent threat posed by Trump's Republican Party with a couple of concise quotations from election maven Richard Hasen:

"The democratic emergency is already here," and "We face a serious risk that American democracy as we know it will come to an end in 2024 . . .”

In an equally compelling narrative, Gellman describes "the bitter grievance of Republican voters that they lost the White House, and are losing the country, to alien forces with no legitimate claim to power" and their acceptance of "revisionist narratives spread by fabulists and trolls" that Trump won the election. While Gellman cites research suggesting that perhaps 21 million Americans (8 percent) are "committed insurrectionists" who believe Biden is an illegitimate president and regard violence as justified to restore Trump to office (while a more recent poll suggests that 12 percent of Americans are in this camp), the number of Republicans who regard Biden's election as stolen is far higher:

"More than two-thirds of Republicans (68%), compared to 26% of independents and 6% of Democrats, believe that the election was stolen from Trump. These shares are even greater among Republicans who most trust Fox News (82%) and essentially universal among those who most trust far-right news (97%). Less than half of Republicans who most trust mainstream news agree (44%)." -- Survey results from the Public Religion Research Institute.

How did we get here? Yesterday Kevin Drum reminded us ("Republicans believe they are fighting for democracy") that we've been headed this way for years. He links to a piece he wrote a decade ago -- "The Dog That Voted and Other Election Fraud Yarns." Subtitle: The GOP’s 10-year campaign to gin up voter fraud hysteria—and bring back Jim Crow at the ballot box. Republicans have been telling themselves lies about voter fraud for an awfully long while.

Drum -- a persistent critic of Fox News Channel's crusade to amplify rage toward liberals, stoke white grievance, and undermine trust in democratic institutions -- concludes his post with a Morning Consult poll -- A majority of Republicans believe there was widespread fraud. Those voters were most likely to cite information from Trump and Fox News as the basis for that view:

Linda Greenhouse ("The Supreme Court Gaslights Its Way to the End of Roe") cites several instances of the “nonstop gaslighting” by the Republican men and  Justice Barrett during this week’s argument setting up the forthcoming repudiation of Roe v. Wade. For instance, Brett Kavanaugh’s invocation of Plessy v. Ferguson:

More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.
But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.

While Donald Trump named half the justices who comprise the far right supermajority on the court, the conservative project to transform the federal bench – like the Southern Strategy that wrenched the Solid South from the Democratic Party – began with Richard Nixon’s presidency. Conservatives doubled down – with the rallying cry “No more Souters!” – after a Republican-dominated court reaffirmed Roe with the Planned Parenthood v. Casey decision in 1992.

What a long, strange trip it's been to get us to this point. As Amanda Hollis-Brusky and Joshua C. Wilson explain ("The Supreme Court might overturn Roe. It took decades of scorched-earth conservative politics to get here."), “The road to overruling Roe runs through the 2010 decision Citizens United v. FEC, which effectively deregulated campaign financing.”

With the Citizens United victory, the National Right to Life Committee, the Federalist Society, and the Christian Right legal movement, in tandem with Republican insiders such as Mitch McConnell and Betsy DeVos, accelerated a big money campaign to buy influence in the GOP. Ka-ching! McConnell’s Senate majority was more than willing to trash norms and contort Senate rules to block an Obama nomination to the high court, paving the way for three Trump appointees. (Alex MacGillis documents in his book The Cynic: The Political Education of Mitch McConnell how McConnell took the heat for the entire GOP Senate caucus, in opposing John McCain’s campaign finance reforms, a stance which eventually won the Kentuckian the GOP’s top job in the Senate. See the fourth bullet point at this link for a description of one of McConnell’s convenient shifts of principle to arrive at a position maximizing at that juncture a political advantage for Republicans.)

The agenda of the court’s Republican supermajority is far broader than denying women the right to make their own health care decisions by imposing state restrictions on their reproductive choices. The court’s majority is intent on radically transforming decades of jurisprudence regarding a host of issues, including voting rights, campaign finance, legislative redistricting, civil rights, gun rights, religious liberty, labor law, environmental (and climate) policy, consumer protections, and more.

For more than a generation (beginning with the Warren era), the United States Supreme Court was a beacon of liberty and justice. This was a historical anomaly. In 2021, with a Democratic president leading the executive branch, Democratic control (barely) of the legislative branch, and Republican domination of the federal judiciary, the Supreme Court poses a grave threat to (i) Americans' liberty, (ii) equal protection and freedom from invidious discrimination, (iii) democratic governance, and (iv) the capacity of government to put into place public policy solutions.

Examples of each: (i) The ongoing evisceration of Roe. (ii) Religious liberty decisions that spin out of whole cloth principles that favor the religious views of white evangelicals and conservative Catholics, and disfavor the power of the state to prohibit discrimination or to restrict public gatherings that endanger public health. (iii) A consistent string of decisions opening the door to voter suppression and gerrymandering, while inviting state legislatures to take steps to overturn the results of democratic elections.

(iv) This is territory that clearly harkens back to the Lochner era. By stripping away tools of the state to address social and economic problems (in ways that Democrats embrace), the court imposes a restrictive set of possible solutions (that Republicans endorse), rather than allowing the political process -- with open debate, competitive campaigns, and elections with the possibility of Democratic victories followed by enactment and implementation of policies as pledged on the campaign trail -- to run its course. As I've argued previously, the Republican Party is on a crusade to craft a "partisan constitution." The SCOTUS majority is intent on debilitating normal politics: rigging the system to invalidate public policy solutions opposed by the Republican Party and the big money donors who fund the GOP.

Earlier this week, Ed Meese (yes, Reagan’s A.G., still kicking after all these years out of sight, out of mind) bemoaned the Casey decision and opined, “Now, unlike then, the Supreme Court has six justices who have all expressed some commitment to the Founders’ interpretive principles, and who have all been shaped by the institutions, scholarship and renewed dialogue brought to the legal profession by the Federalist Society, originalism and textualism.”

Balderdash. Strict constructionism, textualism, originalism, and whatever other isms the conservative legal movement is serving up, are not, as Meese puts it, “neutral principles to constitutional interpretation,” nor do justices vetted by the Federalist Society feel unduly constrained by these “interpretive principles.”

Sure, individual justices do occasionally surprise with their interpretations of the Constitution or of legislative statutes. (See Justice Gorsuch on gay and transgender rights.) That's the rare exception, not the rule. With the 6-3 supermajority securely in place we can expect fewer instances where the exceptions win the day.

In the vast majority of 5-4 and 6-3 cases with every Democratic appointee in the minority, the majority’s decisions more closely track the agenda of the Republican Party, than fidelity to the United States Constitution. For one thing, the justices are highly selective in which parts of the nation’s founding document they affirm, largely ignoring the Civil War amendments, for instance. (Is that a mark of neutral jurisprudence, of an unbiased commitment to the rule of law, or does it signal reflexive deference to the GOP voting base and the politicians answerable to those voters?) Moreover, the justices pick and choose, from case to case, whether or not to appeal to constitutional principles at all. (Which clause or amendment justifies the majority’s gutting of the Voting Rights Act?) As Nicholas Stephanopoulos observed regarding election law [item (iii) above] (and which is apparent in other areas):

But across the right to vote, redistricting, the Voting Rights Act and campaign finance, the court’s decisions have benefited Republicans. And partisan advantage explains these decisions better than rival hypotheses like originalism, precedent, or judicial nonintervention.

Two months ago, I suggested, “Based on recent experience, we can expect the Republican justices to be unconstrained -- whenever it is convenient -- by judicial restraint, stare decisis, federalism, or originalism during the 2021-22 session of the court.”

Thus far, I’ve had no reason to reconsider that judgment. The Republican capture of the judicial branch -- including the high court's Republican supermajority -- is a grave threat to democratic norms and traditions, the patterns and practices that have safeguarded American democracy.

On the Friday before Thanksgiving, the House finally passed the omnibus “Build Back Better” bill and sent it to the Senate, which can be expected to change it significantly before passing it (though approval is hardly a certainty). Jonathan Bernstein, noting further vindication of the Democrats’ two-bill strategy, observed, “It’s unlikely that either the most liberal or more moderate House Democrats would have voted for the bill on Friday without reasonable confidence that all 50 Democratic senators are willing to go along.”

Moderates made a stand for reversing the SALT deduction limits (that punished taxpayers in several large blue states) in Trump’s tax bill (though repeal will likely get watered down or stripped out of the final bill); progressives made a stand to nudge two reluctant Democratic senators, and then relented (because they made a judgment that this would boost their chances of generating a win); and, since Senators Manchin and Sinema accrue benefits when their party and their president succeed, the prospects for passage are promising.

Win-win politics

To sum up: both the most liberal and the most conservative Democrats in the House won something substantial. With final passage (if it comes), every Democrat in both chambers will score a victory (even after months of contentious public negotiations, complete with the familiar Democrats in disarray narrative).

This is the way small-d democratic politics works. These were, of course, intraparty negotiations – among Democrats on the same team – so , as Bernstein notes, there was a high level of trust among the participants. But not so long ago – before the arrival of Newt Gingrich and the ascent of Fox News Channel – when both parties worked together, the level of intraparty trust was much higher.

When both parties were focused on governing, on achieving public policy outcomes, on finding practical solutions to social problems experienced by Americans, then there could be win-win negotiations between Democrats and Republicans (and not just within the Democratic Party). No longer.

Republican dysfunction

The dysfunction within the GOP undermines negotiations between the parties. Contrast the (Republican) House Freedom Caucus, which is indifferent to advancing public policy, to the (Democratic) House Progressive Caucus, which is highly attuned to getting results. John Boehner and Paul Ryan can attest to the willingness of their most radical members to sabotage deals that would have generated GOP policy victories when Republicans ruled the House; the intransigence of the grandstanders often delivered practical wins to Minority Leader Pelosi and Democrats.

Why? Conservatives on the fringes cherished the bragging rights – that they were the real conservatives, ready even to stand up to the leadership, always prepared to move further right than everyone else in the party. They had scant interest in achieving legislative victories.

In 2021, the policy nihilism of the Freedom Caucus has come to dominate House Republicans (which goes far in explaining the refusal of Kevin McCarthy, whose overweening ambition is to become speaker with a Republican takeover in 2022, to stand up for truth or principle). Republicans (such as Representative Fred Upton of Michigan) who voted – to fund projects in their districts and benefit their constituents – for Build Back Better have received threats. Not because of the substance of the bill, but because it was Joe Biden’s bill; were it Trump’s bill, Republicans would have coalesced around it. Cooperation with ones opponents can produce win-win results, as both sides achieve policy preferences. In today’s Republican Party, however, cooperating with Democrats crosses a red line, never mind the substance of the bill.

The Trump years: 2017-2021

Republicans failed to draft a party platform in 2020, apart from declaring unwavering fealty to Donald Trump -- “RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda.” During the first two years of the Trump presidency, before Democrats flipped the House in 2018, Republicans achieved a single legislative victory – tax cuts for rich and superrich, and one resounding defeat – failure to repeal ACA (much less to repeal and replace).

The crowning achievement of the Republican-controlled Senate was not any legislative accomplishment, but packing the courts with conservative ideologues, including (after blocking an Obama nomination for nearly a year) three Supreme Court justices vetted by the Federalist Society.

Two other themes of the Trump presidency stand out: stoking fear and hatred toward Americans (and others) whom Trump didn’t regard as in his camp and defiling democratic institutions, traditions, and principles whenever this was regarded as politically convenient. And Republicans stood with him.

Never a bridge too far

Many Republicans embraced Trump enthusiastically, especially after he won in 2016. While others resisted along the way, most of those who hesitated fell in with Trump eventually. After the November 2020 election, Trump continued to spread lies about his defeat. A Washington Post story (“Top Republicans back Trump’s efforts to challenge election results”) captures the prototypical attitude toward Trump by Republicans not taken in by his lies, but without the courage of their convictions (or, perhaps, simply lacking convictions):

“What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change,” said one senior Republican official. “He went golfing this weekend. It’s not like he’s plotting how to prevent Joe Biden from taking power on Jan. 20. He’s tweeting about filing some lawsuits, those lawsuits will fail, then he’ll tweet some more about how the election was stolen, and then he’ll leave.”

Of course Trump was plotting to prevent Joe Biden from taking power and he didn’t leave the scene. He’s still lording over the Grand Old Party and all who inhabit it.

And the downside of humoring him? A violent insurrection that failed to overturn the election results. A big lie that animates the Republican base and GOP governors and legislatures across the country to suppress the vote, purge officials who deny Trump’s 2020 defeat, and change laws to enable state legislatures to overturn election results.

And the recurring constant in the GOP since Trump’s rise: Republicans have been willing – perhaps not right away, but eventually – to go along for the ride. There is, after the dust settles, never a bridge too far for most GOP professionals, Republican elected officials, or the Trump base. They’re all-in when it counts.

The alure of violence

For six years, Republicans have watched (and often cheered on) Trump’s intimations and invocations of violence. In 2021, Republicans in increasing numbers have shown their willingness to cross this bridge as well, as this report in the New York Times suggests ("Menace Enters the Republican Mainstream"):

From congressional offices to community meeting rooms, threats of violence are becoming commonplace among a significant segment of the Republican Party. Ten months after rioters attacked the United States Capitol on Jan. 6, and after four years of a president who often spoke in violent terms about his adversaries, right-wing Republicans are talking more openly and frequently about the use of force as justifiable in opposition to those who dislodged him from power.

In Washington, where decorum and civility are still given lip service, violent or threatening language still remains uncommon, if not unheard-of, among lawmakers who spend a great deal of time in the same building. But among the most fervent conservatives, who play an outsize role in primary contests and provide the party with its activist energy, the belief that the country is at a crossroads that could require armed confrontation is no longer limited to the fringe.

Violence -- threats of violence, allusions to violence, joking about violence -- has become an unmistakable theme among Republicans in the House and the Senate.

• Posing with guns has long been in vogue among politicians, especially on the right, as demonstrated by Lauren Boebert and Ted Cruz.
• Representative Paul Gosar tweets a violent anime video of himself killing a Democratic Representative Alexandria Ocasio-Cortez.
• Actual violence (resulting in dead protesters regarded by Republicans as on the left) has drawn applause from Republicans in Congress. Matt Gaetz, along with the aforementioned Gosar and Boebert, have offered internships to Kyle Rittenhouse.

Rather than offer additional examples (not hard to find), let me dispense with an excuse or rationalization sometimes put forward by Republicans: We were joking!

We've seen this deflection from Tucker Carlson to escape responsibility for his lies.

We've seen it more recently in the trial of the neo-Nazis and other violent white supremacists in Charlottesville ("In Charlottesville trial, jurors learn to decode the secret slang of white supremacists"):

“They can talk about violence, they can advocate for violence, and then say, ‘Well, it was just a joke.’ ”

To decode the secret slang: it's not a joke. And neither is what we're seeing more frequently among Republicans.

Violence is antithetical to fidelity to the Constitution, to the rule of law, to democratic governance and the give and take of politics. One political party is endeavoring relentlessly to maintain democracy; the other party is resisting mightily.

Steve Scalise on Fox News Sunday repeatedly refuses to acknowledge that the 2020 election was not stolen from Donald Trump. Liz Cheney responds.

Millions of Americans have been sold a fraud that the election was stolen. Republicans have a duty to tell the American people that this is not true. Perpetuating the Big Lie is an attack on the core of our constitutional republic. https://t.co/I0bgEIdJrU

— Liz Cheney (@Liz_Cheney) October 10, 2021

The man probably rationalizes that he isn't lying (just artfully dodging), but he sure isn't acknowledging the truth. Instead, he's going along with the Big Lie that Donald Trump continues to promote.

"The Unselect Committee of partisan Democrats, and two very weak and pathetic RINOs, should come to the conclusion after spending many millions of dollars, that the real insurrection happened on November 3rd, the Presidential Election, not on January 6th—which was a day of protesting the Fake Election results." (Donald J. Trump, September 6, 2021) 

To return to the Louisiana congressman serving as minority whip: going along with a lie, especially the Big Lie about the 2020 election, and especially if you're in the leadership of the party of Trump, has consequences.

"Among Republicans, 78% say that Biden did not win and 54% believe there is solid evidence of that, despite the fact that no such evidence exists."
CNN Poll, September 15, 2021

You read that right. More than three-quarters (78%) of Republicans say that Biden did not win and more than half -- 54% -- believe there is solid evidence for that. Since there is no solid evidence for that, what's going on? Well, Donald Trump, the leader at the top of their party; virtually all the leadership of the GOP at the next level, and the next level, and the next level all the way down; and -- of course -- the biggest prime time stars on Fox News Channel, along with the rest of the conservative media apparatus, have convinced them that this is so.

Republicans (in growing numbers) believe the lie that Joe Biden did not win the November 2020 election, while nearly half (48%) are convinced that folks in the mob on January 6 (aka the "day of protesting") are being treated too harshly:

With voting Americans on both sides of the Democratic/Republican divide disagreeing so starkly on what's what, and folks on both sides convinced that the other side couldn't be more wrong about what, and who, threatens our democracy, this result can hardly be surprising:

Clear and present danger. Eighty percent of Biden voters and 84% of Trump voters view the elected officials of the other party as presenting a clear and present danger to American democracy, while 75% of Biden voters and 78% of Trump voters, regard members of the other party as a clear and present danger to the American way of life.

Three decades ago, Newt Gingrich taught Republicans the vile language to sling at the opposition party, language which we now take for granted. Language that has turned into conviction that (I would wager) partisans believe there is strong evidence for. Gingrich taught Republican leaders. Republican leaders -- including those star personalities who appear on FNC in prime time -- taught the Republican base. And as the hate and the lies multiplied and took root, the leaders are now afraid to contradict what the followers believe.

Even in his most heady dreams, Gingrich could hardly have foreseen how devastatingly effective that tactic would be in sowing division, as he intended. He might find occasion to acknowledge this -- “I could never quite have imagined our political structure being as chaotic as it currently is … I could never quite have imagined the kind of political gridlock that we’ve gotten into,” as he did in 2018 -- but only to set up an attack line targeting Democrats.

Gingrich was the innovator. Republicans were first on board with turning politics into a blood sport. With Trump, the party found a president who never hesitated to deliberately divide Americans; an authoritarian, unconstrained by truth, the rule of law, or even a modicum of respect for democratic institutions (such as free and fair elections and peaceful transitions of power).

Democrats have been less susceptible to affective polarization than Republicans; that is, we haven't hated and feared Republicans as much as Republicans have hated and feared us. But with the ascent of Trump, an increasingly authoritarian Republican Party has gotten our attention. We've seen too much not to be scared of the other side. Finally, the numbers in those survey findings are comparable for members of both parties.

Clear and present danger indeed.

My previous post invoked Donald Ayer's view that to maintain public trust, the Supreme Court should not "actively undermine the ability of governments to advance public purposes as established by a fair democratic process." Yet the Republican majority on the court has done exactly that, appears impatient to do much more, and in its rush to put its stamp on the law has run roughshod over judicial and democratic principles that deserve to be respected.

Ayer's essay ("The Supreme Court Has Gone Off the Rails") calls to mind a discussion in Jan-Werner Müller's book What Is Populism? Müller pushes back against the view of populist leaders as essentially lawless, seeking to be "entirely unconstrained" in their pursuit of power. On the contrary, he argues, "populists will even write constitutions (with Venezuela and Hungary serving as the most clear-cut examples)." Their strategy is to construct "technical constitutional machinery" that places constraints on their political opponents. 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.

Strategically crafting a partisan constitution

Müller describes what Fidesz, Victor Orbán's political party, has brought about in Hungary:

The Hungarian government . . . essentially designed what a former judge on the German constitutional court, Dieter Grimm, has called an “exclusive constitution,” or what one might also term a partisan constitution: the constitution sets a number of highly specific policy preferences in stone, when debate about such preferences would have been the stuff of day-to-day political struggle in non-populist democracies. Moreover, it excluded opposition parties in a double sense: they did not take part in writing or passing the constitution, and their political goals cannot be realized in the future, since the constitution highly constrains room for policy choices. In other words, under the new regime, the constitution makers can perpetuate their power even after losing an election.
. . .
Now, none of this means that populist constitutions will always work precisely as intended. They are designed to disable pluralism, but as long as regimes hold elections with some chance of oppositions winning, pluralism will not entirely disappear. However, such populist constitutions are then likely to result in severe constitutional conflicts. . . . The point is this: Populist constitutions are designed to limit the power of nonpopulists, even when the latter form the government. Conflict then becomes inevitable. The constitution ceases to be a framework for politics and instead is treated as a purely partisan instrument to capture the polity.

The GOP's embrace of the populists' strategy

Whether or not we regard the contemporary Republican Party as populist, Republicans -- long before the Trump era -- have followed the populists' strategy described by Müller: crafting constitutional constraints and commands to favor their party and to disadvantage their political opponents. The GOP has not, of course, sought to re-write the words of the United States Constitution. Instead, the party, through capture of the courts -- and domination of the nation's highest court -- has sought to constrain opponents of the Republican agenda through wholesale reinterpretations of the constitution, creating novel constitutional rights (that advance the Republican agenda), while brushing aside well-established constitutional judgments (effectively ruling Democratic policy choices out of order).

The rulings of SCOTUS's Republican majority too often foreclose change through the political process as practiced in a democracy. Campaigns and elections (and much more) are the stuff of politics. The process ensues as the winners, determined at the ballot box, endeavor to put public policies in place to fulfill their commitments. Yet a determined 6-3 or 5-4 majority, acting with indifference to election outcomes, may short-circuit "the stuff of day-to-day political struggle" (as Müller put it), so that it is no longer possible (in Ayer's words) "to advance public purposes as established by a fair democratic process."

Fast and loose jurisprudence

Ayer reviews a sampling of decisions that have undermined the ability of government to implement policies endorsed through democratic means. These judgments have come in a rush as the Republican majority on the court has willingly trampled on conservative principles (such as judicial restraint and respect for precedent) in handing down its decisions. In recent years, partisanship and fidelity to the agenda of the Republican Party better explain the court's rulings (in the 6-3 and 5-4 decisions that divide along party lines) than any set or subset of conservative judicial principles. Based on recent experience, we can expect the Republican justices to be unconstrained -- whenever it is convenient -- by judicial restraint, stare decisis, federalism, or originalism during the 2021-22 session of the court.

The Supreme Court's Republican majority, now with three Trump justices in place, has displayed cavalier arrogance, disregard for the human consequences of its decisions, and hostility both to American voters and to the primacy of free and fair elections. This majority has waged war on the capacity of governing majorities, when represented by opponents of the Republican Party's agenda, to implement public policy choices.

The justices' assault, without altering a single word of the nation's founding document, has been savagely effective in giving us a partisan constitution.