In just the past two terms, the Trumpified Supreme Court ended women’s constitutional right to an abortion, limited the state of New York’s ability to limit concealed carry firearms, struck down affirmative action in college admissions, blockedJoe Biden’s student-debt forgiveness plan, squashed the separation of church and state in a school-prayer case, gutted the Clean Water Act, and backed LGBTQ+ discrimination. This Supreme Court is so deeply emboldened to reshape society that one can’t help but be relieved when they don’t completely shred the Voting Rights Act or when the majority of justices—though not all of them—reject a fringe, right-wing legal theory that could blow up elections in America. – Molly Jong-Fast
Those assessments match my own, although in several prominent cases two or three Republican-appointed justices sided with their Democratic-appointed colleagues. Do John Roberts, Brett Kavanaugh, and Amy Coney Barrett comprise a new center for the court?
In other words, the court’s Republican majority aggressively pushed its extreme agenda, continuing to overturn long established rights recognized by Supreme Court majorities of the past, while declining to endorse the craziest, least supportable doctrines pressed by the conservative legal movement – though several justices were onboard for the crazy (in dissenting opinions). That’s not movement toward the center; that’s a distorted view created by the court’s control of the docket (as Steve Vladeck has argued).
The court accepted a bevy of radical cases, and then only sided with the radicals in some, but not all instances. Furthermore, as I have repeatedly argued, in recent years, the 5-4 and 6-3 decisions decided by the Republican majority are predominantly results-driven, unguided by any consistent, coherent judicial principles. The most extreme justices freely cherry-pick history and, when history is not on their side, they make it up. The former was true of Justice Thomas’s 2022 ruling striking down New York gun restrictions, while the justice took the latter route in his decision banning affirmative action (as Adam Serwer demonstrates).
President Biden, while acknowledging an aberrant supreme court, has been unwilling to embrace substantial reform of the court – such as expanding the number of justices and increasing Congressional control of the court’s docket (something that was in place “for most of the court’s history”). Each of these is politically out of reach in any case. They will have to wait for another time, when Democrats control the White House, the House, and a Senate unbound by the filibuster. That day will come, though not soon enough.
Anyone who follows contemporary political debates will have noticed that American conservatives' rhetoric on behalf of their political program is inevitably drenched in lies. Yes, this is a contentious way to put the point, but it is glaringly true.
Whether the subject is the January 6 riot at the Capitol (even among folks, like Kevin McCarthy who at one time forthrightly acknowledged the truth, but now deny it) or the insistence that Congressional Republicans are absolutely not intent on cutting funding for Social Security or Medicare (when GOP caucus members can be counted on to propose such cuts within days of issuing their blanket denials), conservatives (and the major political party that embraces movement conservatives) persistently resort to falsehoods to advance their arguments.
Yes, this is a pet peeve of mine. Something is very wrong when you must lie to make your case politically. While enduring this is chronically annoying, it is hardly a mystery why it happens. The Republican agenda is unpopular. Republicans nationally can't tell the truth about it without suffering at election time. To state -- straightforwardly, truthfully, and without sleight-of-hand duplicity -- their views and intentions would be an election loser. They represent a minority faction of Americans. When elections are free and fair, and the outcome is up for grabs, the right can't be counted on to be truthful. Instead, "it's leaders lie all the time ...."
Although I agree that “Sometimes, the public, incorrectly, views movement judges as interchangeable with partisan judges,” the distinctions the authors make are hardly surprising for observers of the political battles waged over the federal courts since the 1980s (or earlier). Nonetheless, their analysis clarifies a (small-d) democratic predicament.
Neither the anti-abortion movement (led by white evangelical Christians), nor the conservative legal movement (championed by Leonard Leo and his deep-pocketed donors, often of dark-money), are committed first and foremost to the Republican Party. The party is a vehicle. The SCOTUS majority in the Dobbs decision was determined, by hook or by crook, to overturn Roe – never mind the consequences for the Republican Party. At this stage, the decision appears to be an electoral loser for Republicans (though not in their primary elections, where movement activists wield exorbitant influence).
Like last year’s New York State Rifle & Pistol Association v. Bruen ruling, the court majority brushed aside precedent, judicial restraint, concern for the court’s legitimacy, and scrupulous adherence to any purported principles (‘originalism,’ ‘strict constructionism,’ ‘textualism’) promoted in recent decades by the Federalist Society. This imperious majority cherry-picked history in both rulings, as it has in other decisions, when it hasn’t ignored history altogether because it conflicted with the justices’ results-oriented reasoning.
But whatever else these decisions were, they constituted victories for the Republican Party, which is in the thrall of activists of both social movements. Not all victories are popular; not all are winners at the ballot box. The country’s movement judges are a product of the Republican Party’s relentless campaign to capture the courts.
This is crucial to the Republican Party’s strategy because their agenda is broadly unpopular, especially with an increasingly younger, more diverse electorate. What Republicans can’t win at the ballot box, they can impose through an unrestrained judicial branch, with the power to neuter and dominate the other branches of government – the political branches, where Americans are empowered to cast ballots.
As Tsai and Ziegler put it:
“What we are seeing now on the Supreme Court is a bloc of justices receptive to conservative social movements on key legal issues, and that raises the risk of judge-driven oligarchy: the recalibration of constitutional law for the benefit of the few over the interests of the many.”
1 - From 1978 to 1995, a misbegotten loner savagely acting out against contemporary society rained terror on unsuspecting Americans, killing three and injuring twenty-three. I'd forgotten many details about Ted Kaczynski, aka the Unabomber, but today's news conveys reminders. Among the most disturbing facts is found in this brief paragraph:
Kaczynski kept himself busy with correspondence. He periodically donated the hate mail addressed to him — as well as his many exchanges with fans — to a special collection at the University of Michigan library.
The man received fan mail (in addition to hate mail). The Unabomber had fans. One hopes not that many and few in positions of authority.
Here's what I found significant: the leadership of the Conservative Party has not gone to the mat in defense of Johnson or his lies. Few Conservatives in office (or in partisan rightwing media) have rallied around him.
3 - Donald Trump has been indicted by a federal grand jury. Among the charges: violation of the Espionage Act that bars willful retention of national defense information (31 counts); withholding or concealing boxes of documents in a federal investigation (3 counts); making false statements (2 counts); and engaging in a conspiracy to obstruct justice (1 count).
Ample evidence of many of the facts alleged have been clearly established by Donald Trump's own words. To cite a single instance: lacking concern for protecting national security, Trump sought to defy a subpoena by insisting: I don't want anybody going through my boxes.
My boxes. How well that sums up the former president's attitude when the law conflicts with his personal preferences.
Trump's flouting the law is all too familiar to anyone who has watched him for the past eight years, yet few leaders in the GOP dare to confirm what's in plain sight. Those who speak out mimic Trump's slander of law enforcement and launch political attacks. From Speaker McCarthy to Senator Graham, from Governor DeSantis to former Governor Haley , from Fox News to state parties throughout the country the Grand Old Party is replete with Trump wannabes and defenders.
For a brief moment (roughly from the end of World War II through the early '70s) an economic consensus held sway (or appeared to) in the United States. Working- and middle-class Americans would receive an equitable portion of the country's wealth. This -- in the post-New Deal era -- was a historical anomaly.
Everyone thrived, but the rich not quite so much as before FDR. Corporate titans wanted the bigger share that economic elites had long been accustomed to getting. Their plot to regain dominance is memorialized in the Powell memo (August 1971). Although the economic transformation was underway by the 1980 presidential election, Ronald Reagan's victory is an apt demarcation of the new era -- which we live in to this day.
Kevin Drum's chart is a telling illustration of what we've experienced since the Reagan revolution.
Make no mistake, the Republican Party has pursued, with deliberation and forethought, over several decades, public polices that have vastly increased the number of guns in the U.S. and accelerated the deluge of mass shootings.
We didn't get here by happenstance or divine intervention, but by choices embraced by Republicans in elected and appointed office and in conservative media.
Republicans would like to pretend otherwise; hence, their familiar threadbare responses to gun violence.
In the most economically prosperous metro regions of the country (in both blue states and red states), Democrats dominate, as Ronald Brownstein observes ("The Republicans' Big Rich-City Problem"). Driven by innovative computing, communication, biotech, and manufacturing industries, these economic centers have attracted diverse, well-educated folks with eyes on the future. MAGA messaging has no appeal for them.
Brownstein writes:
The Democrats’ ascendance in the most-prosperous metropolitan regions underscores how geographic and economic dynamics now reinforce the fundamental fault line in American politics between the people and places most comfortable with how the U.S. is changing and those who feel alienated or marginalized by those changes. Just as Democrats now perform best among the voters most accepting of the demographic and cultural currents remaking 21st-century America, they have established a decisive advantage in diverse, well-educated metropolitan areas.
I was struck by Brownstein's description of the political fault line: "the people and places most comfortable with how the U.S. is changing" vs. "those who feel alienated or marginalized by those changes."
I encountered a couple of other references to the relative comfort of Americans on the same day I saw Brownstein's article. Elizabeth Bruenig remarks ("A Country Governed by Fear") on the killing in a New York subway of Jordan Neely, whose screaming about being hungry, thirsty, and ready to die frightened passengers, including some who feared he might have been armed:
Many people feel uncomfortable when confronted with someone in an acute crisis. But certain factors can turn an uncomfortable situation into an intolerable one, such as living in a society where anybody could have a gun, where any agitation can boil over into mass murder. An irate neighbor slaying five people with an AR-15-style rifle after a noise complaint in Texas; an unstable Coast Guard veteran killing one and injuring four while attending an appointment with his mother in an Atlanta hospital. The stakes in any given episode of public agitation or distress or even psychosis aren’t typically all that high; the majority of people having crises at any time represent no risk to anyone (save, perhaps, themselves), but the incessant rat-a-tat of bloody headlines makes people feel—visceraly—that the risks they do encounter are unbearably dangerous.
While this homeless man wasn't armed, and no one pulled a gun on him, the increasing presence of guns in public and private spaces, the dismantling of basic gun safety legislation that has been in place for many decades, and the rising level of gun violence, especially mass shootings, have made everyone more uncomfortable. Fear of harm, made more acute by fear of harm from gun violence, has greatly increased gun sales and ownership, made us all less safe -- and put us all on edge. The distressing headline of an op-ed by Roxanne Gay aptly sums things up: "Making People Uncomfortable Can Now Get You Killed."
Red America -- those folks most uncomfortable with the future -- is represented by the Republican Party, which has fiercely resisted restrictions on military assault rifles and universal background checks, for instance, while actively removing traditional safeguards to protect the public, such as requiring gun training for gun owners and prohibiting weapons in bars, churches, schools, and other venues. Republicans -- from the U.S. Supreme Court to state legislatures to local sheriffs across the country -- have succeeded in vastly increasing guns and the toll of gun violence throughout America.
The glut of guns and gun deaths represent a political victory that has significantly changed our country. This has put us all on edge. And this too is a political achievement (intentionally inflicted to gin up votes, dollars, ratings, and clicks).
All of us -- no matter what our politics, our age, our color, our religion, where we live, what our economic prospects are, how much education we have -- all of us have become much less comfortable in recent decades as the U.S. has come to have a superabundance of guns. This is not a virtuous cycle: it will lead to more guns and more lethal encounters. Give credit to Team Red.
Governor Ron DeSantis, enemy of all things woke, dominates Florida politics. Not even his critics would deny this.
“The man is an instinctive authoritarian and practicing bully,” said Mac Stipanovich, who spent three decades as a GOP consultant and lobbyist in Tallahassee but left the party in 2019 during Trump’s presidency. “And he is sufficiently popular with the Republican Party primary base that you cross him at your own considerable risk.”
And the governor relishes his image, as God's fighter:
"God said I need someone to be strong, advocate truth in the midst of hysteria, someone who challenges conventional wisdom, and isn't afraid to defend what he knows to be right and just. So God made a fighter."
When DeSantis expressed support for a 6-week ban on abortion, the legislature quickly complied. This represents a huge change in public policy, made possible by the Dobbs decision last year. But after this victory, instead of touting this accomplishment on behalf of the white evangelical base of the Republican Party, the governor signed the bill late at night without fanfare. And he neglected to mention it at all the next day when speaking to an evangelical audience at Liberty University.
Kent Syler, a political science professor at Middle Tennessee State University, said fomenting fear around culture war issues — then promising to take action against these perceived threats — has become a winning formula for conservative Republicans. It also distracts voters from more intractable concernslike gun violence, school funding, and inflation, he said. “It’s a whole lot easier to say you’re fixing some culture issue than it is to fix a real government problem, because we don’t really have easy answers for those things,” Syler said.
We see this dynamic play out across the county as Republicans revile the LBGTQ community and impose restrictions on transgender youth, their parents, and transgender adults (all together: a sliver of the population). Bullies target the vulnerable.
But in the case of restrictions on abortion, all women of childbearing age are targeted. This is a highly significant public policy issue with widespread impact. But while anti-abortion activists applaud bans on abortion, many women (and men) abhor state-mandated coercion that denies women their agency.
Eighty-five percent of Floridians -- and 61 percent of Republicans -- oppose the 6-week ban on abortions with no exceptions for rape or incest. Opposition in many other states (including swing states) is likely to be even higher. Is imposing the coercive power of the state in this case God's work? Or is it off the rails MAGA Republicanism?
God's fighter appears to be losing his voice regarding the evangelical dream of forcing women to carry all pregnancies to term regardless of their wishes or circumstances. The governor's freedom agenda is fraudulent. The authoritarian faction that has a stranglehold on the Republican Party isn't seeking freedom. They're looking for a strongman.
Have they found one in the Florida governor who bows to political convenience, who appears "afraid to defend what he knows to be right and just"? And, to the extent that this man sticks to his guns by embracing the coercive power of the state to impose its will on individuals and families, is this what Americans want?
Candidate DeSantis is going to find it difficult to straddle this issue. It will be awkward, if he wishes to portray himself as a tough guy -- as God's fighter, to lose his voice (and claims to authenticity) when speaking to the whole nation. While, if he stands his ground, American voters beyond his white evangelical base are poised to spurn him and his autocratic vision of state power.
We learned this from an investigation by ProPublica. The quotation immediately above is the first point of their 18-part Twitter tread summarizing what they uncovered.
The billionaire who has lavished gifts on Clarence (and Ginni) Thomas, a megadonor to the Republican Party and to conservative causes (including the Club for Growth, AEI, the Hoover Institution, and various groups that rely on dark money), is Harlan Crow, heir to his father's real estate fortune. The friendship of the justice and the billionaire began after Thomas's ascent to the Supreme Court.
"I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States,” Thomas said in a recent interview for a documentary about his life, which Crow helped finance. "I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it,” Thomas said. “I come from regular stock, and I prefer that — I prefer being around that."
The cost of this vacation, the report notes, had the Thomases had to pay for it, would have exceeded $500,000. But the trip was on the GOP megadonor’s tab.
I’m curious: In Indonesia, as the Michaela Rose (the name of Crow’s superyacht) hopped from island to island, did the justice chafe at each of the beaches, longing to satisfy his preference for the company of regular folks in a Walmart parking lot?
4 Justice Thomas, in a statement, does not dispute a word in the Pro Publica account. He does add a grace note. Pro Publica reported that Thomas and Crow are friends. Thomas goes further, speaking for himself and Ginni, he says that Harlan and Kathy Crow are among their “dearest friends.”
I’ll bet.
“As friends do," the justice's statement reads, "we have joined them on a number of family trips during the more than quarter century we have known them.”
Family trips. That sounds so wholesome.
As a justice of the high court, Thomas pulls down a $285,400 salary from the federal government. That's comfortably affluent (and higher than the income of most Walmart-shopping families), but hardly in Crow's class. It makes you wonder: How does one reciprocate after receiving gifts that, over a couple of decades, are valued in the millions of dollars?
That's required by post-Watergate reforms. Yet Thomas chose not to divulge such gifts in his required financial statements over the past two decades.
6 “Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
Hmm. The Los Angeles Times disclosed in 2004 that Thomas had accepted expensive gifts from Crow – a Bible owned by Frederick Douglass, a bust of Abraham Lincoln, and a stay (after a ride in Crow's private jet) at the Bohemian Club – based on a review of Thomas's financial disclosures. Thomas had been on the court for 13 years at that time, which one might regard as covering the period "early" in his tenure on the court. But apparently the "guidance" from unnamed, ill-informed colleagues came later.
On Thursday, the LA Times followed up on that article from 19 years ago:
What a convenient, efficient way to avoid public reproach from a nosy press corps. Or to put it another way, consistent with the original intent of the law: to dodge accountability as a public servant. Just stop filing the required reports.
7 While there is an exception to the disclosure requirement for having dinner at the home of a friend (accepting "personal hospitality" as Thomas put it), experts on this legislation note that there is no exception for the many flights on Crow's private jet, nor for much of the other largess that the GOP megadonor lavished on the Thomases. (See this review by a couple of skeptical journalists.)
Yet it was all kept secret.
8 The image at the top of this post is a painting commissioned by Crow that features him, Thomas, and several conservative operatives at the billionaire's private lakeside resort, Camp Topridge, in the Adirondacks. Crow is on the right, next to Thomas. The guests portrayed on the other side of the justice are three conservative operatives: Leonard Leo, Mark Paoletta, and Peter Rutledge. Leo is most well-known: the architect of the current conservative supermajority of the Supreme Court; the man who gathered much more than a billion dollars in contributions (either openly reported or dark money) as head of the Federalist Society, which has led the way in transforming the high court (and the federal courts beneath it) to reflect far right ideology.
Looks cozy, doesn't it, as the men – the justice, the billionaire, and the conservative operatives – all relax beneath the statue of a Native American, posed with outstretched arms and his eyes on the heavens?
Wow.
9 The photorealisitic painting, which celebrates a confab of conservative movement leaders, sets up a response to the assurance from Thomas that his many lavish encounters with Crow and company represented visits with "close personal friends, who did not have business with the court." Senator Sheldon Whitehouse responds:
Oh, please.
If you’re smoking cigars with Leonard Leo and other right-wing fixers, you should know they don’t just have business before the Court — their business IS the Court.https://t.co/y1JQ9Tckmu
Well, and don't forget the appellate and circuit courts. Leo (with a critical assist from Mitch McConnell) has transformed the whole federal judiciary.
10 Clarence Thomas embraces a theory (originalism) that statements in the Constitution must be interpreted as they were originally intended. He professes to discern the intent of our 17th century founders (though his decisions reveal a facility for cherry picking facts, rather than an understanding of history). Thomas reveals no doubts, no hesitation. He is determined to wrench American society in a different direction (to match a vision he shares with Republican activists) through decisions by an imperious Supreme Court majority.
Yet, regarding the meager ethical requirements imposed on justices of the Supreme Court, he places his failures to comply on unnamed "colleagues and others in the judiciary."
Huh?
This man is making law for the country. He has a degree from Yale. He's been on the bench for decades. He has had access to a bright cohort of law clerks. And he can't be bothered to determine the minimal requirements of a federal judge by a plain reading of the statute? He is hiding behind someone else (unnamed, from long ago "early" in his tenure) to explain away his obligations under federal law. Moreover, he appears to be blind to the least concern regarding the legitimacy of the court.
11 The magnitude of corruption revealed in this report by Pro Publica is spectacular. Bestowing material benefits that only a billionaire could afford on a federal employee charged with making consequential decisions that affect all Americans poses an obvious problem. Hence the post-Watergate reform legislation. That's pretty clear, isn't it?
Yet Republicans have offered a shrug to the revelations that one of their megadonors has showered a small fortune on a justice of the Supreme Court. The Wall St. Journal editorial page has gone further, declaring the Pro Publica story a "smear" of Thomas. Pause for a moment: Can you imagine, if Elena Kagan had accepted millions (or even hundreds of thousands, or even thousands) of dollars of gifts from George Soros, and had kept them secret, how Republicans and Paul Gigot's team at the Journal would have reacted?
12 The stench is overwhelming. Yet there are unlikely to be significant consequences.
The thoroughgoing unaccountability of the Supreme Court is beyond scandalous. Thomas's zealous drive to remake American constitutional law is representative of the whole crew in the Republican supermajority of the current court. They are in a rush to impose their vision of America on all of us. The success of that project is what matters to conservatives. They are fine with anything that furthers that end.
Last fall, the Heritage Foundation hosted a celebration of Thomas's record on the high court. Mitch McConnell, whose twisting of Senate rules was instrumental in packing the court with a 6-3 majority likely to endure for decades, spoke. He declared Thomas a "legal titan."
That quotation (from Shirley Chisholm circa 1969) is the lead to Rebecca Traister's cover story ("Abortion Wins Elections") in the current issue of New York. The subhead describes the point at issue: The fight to make reproductive rights the centerpiece of the Democratic Party’s 2024 agenda.
I've written repeatedly that MAGA Republicans are invoking a twisted, constrained view of freedom that masks an authoritarian project on behalf of the GOP's white evangelical base. I recommend "Abortion Wins Elections," which offers a Democratic alternative.
Michigan Governor Gretchen Whitmer, who leads a state party that has placed women front and center, a model for Democrats nationally, promotes abortion "as both a practical, voter-friendly issue and an inalienable human right at the center of a galaxy of related concerns." Says she, "If you don’t think abortion is an economic issue, you probably don’t have a uterus.”
The concerns of women (and men who embrace equality) are key to the Democratic challenge to a backwards-looking Republican Party. A handful of quotations from Traister's piece are suggestive:
… Dobbs also catalyzed a revolution in the politics of abortion. And now it’s not just some loud activists and marginalized lady pols telling Democrats to move quickly and assertively to figure out how to make abortion available again across the country: It’s voters.
Often mocked as being part of the pussy-hat-wearing hashtag resistance, a new generation of politicians and voters is in the midst of correcting one of the Democratic Party’s signature failures of the Roe era: its lack of investment in state government.
Spending time with Michigan’s newly elected governing majority is a little like landing on a planet where no white men are in charge.
[Dana] Nessel has told the story of an early meeting of executive leadership in 2019 at which she’d gotten her period unexpectedly; when she asked if anyone had a tampon, Whitmer replied, “Madame Attorney General, everyone here has a tampon.”
Although the article focuses on Michigan and the U.S., democracy and women's rights are under siege the world over, so small-d democrats everywhere are pushing back:
Lawmakers and activists around the world have focused not simply on privacy or individual decision-making (a matter between a woman and her doctor, as Democrats often said in the days of Roe) but on abortion as a human right strongly tied to democracy reform, resistance to authoritarianism, and violence against women.
