democratic impasse.com

After surveying abortion rights at the time the 14th Amendment was enacted, Justice Alito's draft opinion, which masquerades as the result of originalism, asserts: “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

It turns out he’s flat out wrong. Professor Aaron Tang points out (in the Los Angeles Times) "the glaring historical mistakes that pervade its supposedly originalist analysis." The Alito draft acknowledges that at the time of the nation's founding abortions were permitted before quickening (first notable fetal movement, which occurs at roughly 15-16 weeks of pregnancy), but rejects this as "of little importance" by the time the 14th Amendment was ratified. Alito writes, "By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening."

To the contrary, replies Tang:

The best evidence is that only 16 of 37 states banned pre-quickening abortions when the 14^th Amendment was ratified. In the other 21 states, abortion remained perfectly lawful through roughly 16 weeks of pregnancy. As one pastor explained in response to a married woman who consulted him about a pre-quickening abortion, such an act was “no crime, because the child was not alive.”

As I have noted repeatedly in this blog, fidelity to the agenda of the Republican Party far better explains the rulings of the Republican majority on the Supreme Court than any appeal to originalism, textualism, or strict constructionism. The Republican justices ignore such principles whenever need be to reach a conclusion that they wish to reach. When they do appeal to originalism, their interpretations are often contentious and unconvincing. (Regarding the First Amendment, for instance , their campaign finance rulings interpret speech in a way that would have baffled the founders, while their recent religious liberty rulings are hardly compatible with a strict or historical reading of the establishment and free exercise clauses.) So Alito’s mistake or misrepresentation in this instance is hardly surprising.

The draft opinion (with virtually all 5-4 and 6-3 SCOTUS opinions with only Republicans comprising the majority) is a results-oriented ruling. Beginning with Richard Nixon, Republican presidents have aimed to remake the federal bench. The catchphrase then was "strict constructionism" (the originalism of the day; in any case, that's ancient history now with this relentlessly activist court). Republican Presidents Nixon, Ford, Reagan, and the first Bush all nominated at least one authentic, well-qualified conservative jurist whose rulings at some point displeased the right wing of the Republican Party. (Adherence to, or straying from, the Constitution had nothing to do with the displeasure. They strayed from Republican talking points.)

Enter the Federalist Society, which has focused on guaranteeing no surprising rulings that contradict the major tenets of the Republican Party agenda -- especially on abortion. Donald Trump promised to outsource the vetting of Supreme Court nominees to the Federalist Society, which, in turn, chose nominees who would stick to the party line come hell or highwater.

By 2017, when Trump entered office, the Federalist Society had a robust list of names and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were each regarded, with good reason, as sure things on a cluster of issues important to the party. (Never mind the consternation expressed by Senators Susan Collins and Lisa Murkowski.) All three Trump appointees, with Clarence Thomas, Samuel Alito -- and, yes, even John Roberts, who prefers to overturn major precedents in three steps rather than one -- are members of the Federalist Society.

Powerful Christian Right faction of the GOP

This ruling (when it comes down) will match the agenda (and decades of campaign promises) of the Republican Party and the wishes of a powerful faction of the party's base voters. After the leak of the Alito draft, North Country Public Radio interviewed voters about an anticipated ban on abortion. An advocate for banning abortion, Richard Harris, voiced views consistent with the GOP agenda (as quoted by reporter Emily Russell):

“The bible says where there’s blood, there’s life," says Harris. "The life is in the blood and God is the author of life. We’re not the ones that can take it away," says Harris. "It’s not our right.”

This is a religious view. (One view, hardly a consensus, among many.) I’ll note that if there are any references to abortion in the Bible, they have not come to my attention. Harris appeals to biblical passages that reference blood. I don’t know how he came to believe what he professes to believe, but he speaks with absolute certainty.

Regardless of his politics, his views (as reported) are a perfect match for the Republican party line: state sanctioned enforcement of this religious view must prevail. There is no thought – from a party that makes a fetish of invocations of liberty and touts family values – to preserving a woman's liberty in this matter or offering empathy for struggling families. Not at all. If a woman becomes pregnant, she must be forced to carry the pregnancy to term. Never mind how burdensome, or even, as recent laws require, risky continuing the pregnancy is.

Poverty and severe medical risk

Let’s acknowledge first that most abortions are sought by women who live in poverty and often lack access to adequate medical care. The red states that have refused to expand coverage under ACA are among the hot spots ready to outlaw abortion. Not only does this rob women of agency, in many instances, it poses risks for both the woman and the fetus, and eventually (if all goes well) the mother and her young child. Will Republican governors and legislators act to help these women?

Back at the cafe, Mr. Harris has faith that someone (somewhere, somehow) will step up to help: “I think there are resources and there are people who have been touched by God to love who will care for these children if there’s not a father around to really man up for it."

Again, this is consistent with the GOP agenda: no government handouts for poor women; no state coddling of children, infants or the unborn. And just for spite (as noted above): no Obamacare. The Republican Party line: the state is justified in forcing pregnant women to carry pregnancies for nine months and to give birth, but is committed to refuse assistance for families in need.

Let’s be clear what this means in practice. In the Up First podcast, NPR’s Rachel Martin reports on a Texas woman, Ana (and Scott her fiancé, now husband), who had decided, after an unexpected pregnancy, to have a child. Then, at 19 weeks, her water broke – too soon for the baby to survive. The couple spent the night in the ER agonizing over the heartbreaking news.

Ana’s doctors told her that even with excellent NICCU care, the fetus would not survive, while Ana was at great risk of experiencing septic shock or dying from loss of blood. Furthermore, the complications that Ana risked would have diminished her chances of having a healthy baby in the future.

Standard of care in the United States would offer the option of terminating the pregnancy at this stage, but Texas law prohibited this – unless Ana’s condition worsened so that she was in imminent danger of death. The couple, which could afford a flight out of state at considerable risk to Ana, fled to get an abortion.

The Texas law (which provides no exceptions for rape or incest) and the draconian laws in other red states that will soon be in place, reflect the religious views of Catholic and evangelical voters who comprise a powerful faction of the Republican base. Meanwhile, Republicans have begun discussing a nationwide ban on abortion and even bans on birth control.

The strong arm of the law

An intolerant religious minority is bent on returning to an era when women were subjugated to men. This minority believes that women need to be put back in their places in a traditional gender hierarchy. It is not for women and families to make medical decisions; it is for the state to impose its judgment. This view abets even abortion bans that threaten the welfare of women and children, that harm the future prospects of women and families, and that put women's lives at risk.

This minority is a critical faction of the voting base of the contemporary Republican Party. Simply put, Republicans can't win elections without this faction turning out in force. Focused on gaining and retaining political control, the party is champing at the bit to use the coercive power of the state to enforce bans on abortion.

Don’t count on the Republican majority on the Supreme Court to protect Americans from such assaults by government on our freedom. And don’t think for a moment that this activist court is driven by a faithful reading of the Constitution of the United States.

Cristina Cabrera and Kate Riga at TPM offer "Five Key Takeaways" from Samuel Alito's February 10 draft opinion written for the court majority. I'd like to focus on number 3.

They note Alito's look back at earlier eras of American history, wherein he fails to find an abiding commitment to abortion rights. He writes, “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

While racial resentment and white grievance have always been front and center politically for Donald Trump, so was gender politics. His boasts about having his way with women, even physically assaulting them, and the many reports of his egregious conduct reveal a man who rejects the equality of women. I often regard the MAGA campaign as invoking 1950s America, when white men ruled without much fear of pushback. Cabrera and Riga look further back, all the way to the 19th century.

Regardless of the inspiration (in nostalgia and myth) for MAGA, it's clear that the Republican Party wishes to move the calendar backwards to a time before the advances of civil rights and women's rights -- experienced in the latter half of the twentieth century -- that clash with the racial and gender hierarchies of the past. The Supreme Court's Republican majority is on board with this backward movement. As I wrote in a previous post:

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. 

 

Senator Lana Theis accused me by name of grooming and sexualizing children in an attempt to marginalize me for standing up against her marginalizing the LGBTQ community...in a fundraising email, for herself.

Hate wins when people like me stand by and let it happen. I won't. pic.twitter.com/jL5GU42bTv

— Mallory McMorrow (@MalloryMcMorrow) April 19, 2022

It's about time someone replied to the vile, vicious lies about pedophilia and grooming that have become mainstream fare among Republicans. Not so long ago, this crazy was confined to QAnon. Pizzagate was a fringe sideshow. No longer.

Marjorie Taylor Greene is onboard of course:

The Democrats are the party of pedophiles. The Democrats are the party of princess predators from Disney. The Democrats are the party of teachers, elementary school teachers trying to transition their elementary school-age children and convince them they’re a different gender. This is the party of their identity, and their identity is the most disgusting, evil, horrible thing happening in our country.

And the press secretary of Florida Governor Ron DeSantis (anyone opposing the Don't Say Gay law is "probably a groomer"), as well as the governor himself (opponents of the bill “support sexualizing kids in kindergarten”). After Fox News picked up on the smear, the charge became a standard Republican talking point.

Josh Marshall has argued that

mainstream political media is particularly ill-equipped to grapple with the ways in which the GOP pushes what is in essence eliminationist rhetoric and incitement. Many of us know about the QAnon conspiracy theory world which posits a vast liberal/Democrat conspiracy of sex trafficking and pedophilia which will finally be undone by a violent cleansing of America by Donald Trump. Conventional media seems entirely incapable of grappling with, explaining or describing the way that the “mainstream” GOP has increasingly promoted and mainstreamed these beliefs with a spectrum of indirect to increasingly explicit messaging. We see it in the otherwise quite difficult to explain focus on the sentencing specifics of a few cases overseen by future Associate Justice Ketanji Brown Jackson. We see it in what I discussed yesterday as the right-wing appropriation of the pedophile/sexual predation language of “grooming” to indict and discredit any and all support of transgender minors. Conventional journalism simply has a willed incapability to make the connections.

The next day, Marshall cited another press failure: a Mike Allen report on what Marshall characterizes as Texas Governor Greg Abbott's "various stunts in recent weeks to keep the border immigration issue at a boil for his own 2022 reelection campaign" wherein the Axios co-founder reports on another "trucker protest" with nary a nod of acknowledgement about what the guv is up to. Marshall concludes, "These are truly the days of our discontent. The political climate is bleak, elite DC press corruption is pervasive." (While I agree with Marshall that this is an instance of a press failure, I'd lean toward cluelessness, and maybe an indifferent rush to post online, rather than corruption.)

After Mallory McMorrow spoke out, the Washington Post weighed in with a report titled, "GOP turns to false insinuations of LGBTQ grooming against Democrats."

What's more concerning though, than a flatfooted political media, is the failure of Democratic leaders to speak up. What were the Democratic Senators on the Judiciary Committee thinking when they sat on their hands, instead of calling out the perverse smears of Josh Hawley? Why has it taken so long for an elected Democrat to push back straightforwardly against this homophobic dive to the gutter? Republicans are telling lies to eviscerate the advancement of gay rights in recent decades, to claw back their own freedom to disparage the LGBTQ community and its allies, and to besmirch the party of inclusion.

I'm no political strategist. Maybe this isn't an ideal Democratic issue for the 2022 campaign season. But come on. Pushing back against this hateful, dehumanizing rhetoric is the only defensible option.

According to the New York Times Magazine, when Forbes embarked on its first billionaires list in 1982, its reporters discovered the world's richest man, a shipping magnate, was worth $2 billion — that's $5.8 billion adjusted for today's dollars. Let me reiterate: Musk and Bezos are now worth a combined $448 billion. The difference between Musk and the shipping magnate, bumping him to a 2022 adjusted net worth of $5.8 billion, is like comparing someone with $100,000 to someone with $2,157.

And that's what makes the two richest people on Earth blithely discussing how to convert portions of Twitter and Amazon HQ into one-off homeless shelters so cartoonishly offensive. Their imaginations and ambitions shrink infinitesimally smaller when they can't make billions off a product (real and imagined). They would never, will never, seriously confront the inequality challenges that lay before us because they don't care. They can't care. It's antithetical to their existence. 

That's from Alex Shultz, "The infuriating insincerity of Elon Musk and Jeff Bezos' chat about San Francisco homelessness," who explains the context of the 'chat.' I recommend his commentary, which includes this observation: "The public exchange between Bezos and Musk was a detente of sorts in the cold relations between two fake space cowboys. It was also enraging, as are any conversations between the richest people on Earth about piecemeal solutions to systemic problems that they've only made worse. But most notably, it shows just how untouchable both men truly are, a reality they both seem to understand and relish."

As noted in my previous post, high and growing levels of economic inequality pose a threat to democracy. In no other wealthy country in the world is the gulf between rich and poor as great as in the United States. Well over a half million people in this country are homeless. The two richest men in America (and the world) have found time to make light of this.

Writing in Foreign Affairs just before the 2020 election, two political scientists referenced five historical crises of American democracy: the late 1790s (a mere decade after the Revolution), the lead-up to the Civil War, the Gilded Age, the Depression, and Watergate. These were episodes when authoritarian impulses threatened democratic principles and, at times, when democratic backsliding occurred.

Suzanne Mettler and Robert C. Lieberman wrote:

These crises of democracy did not occur randomly. Rather, they developed in the presence of one or more of four specific threats: political polarization, conflict over who belongs in the political community, high and growing economic inequality, and excessive executive power. When those conditions are absent, democracy tends to flourish. When one or more of them are present, democracy is prone to decay.
Today, for the first time in its history, the United States faces all four threats at the same time.

I found the authors' analysis, including the four specific threats, to be helpful in understanding the crisis of our democratic institutions. Anyone familiar with 21^st century American politics will recognize the four threats.

▪ Political polarization – and negative polarization make the give and take of everyday politics excruciatingly difficult, especially since our group identities and tribal loyalties have become more closely aligned with our partisan differences. As John Sides, Michael Tesler, and Lynn Vavreck describe recent developments:

Racial and ethnic minorities were shifting to the Democratic Party and voting for its candidates. Meanwhile, whites’ attitudes toward racial, ethnic, and religious minorities were becoming more aligned with their partisanship. People who expressed favorable attitudes toward blacks, immigrants, and Muslims were increasingly in the Democratic Party. People who expressed less favorable attitudes toward these groups were increasingly in the Republican Party.

In the words of Ezra Klein:

What we are fighting over in American politics is group identity and status—fights that express themselves in debates over policy and power but cannot be truly reconciled by either. Health policy is positive-sum, but identity conflict is zero-sum.

▪ Conflict over who belongs. Which groups may legitimately participate in democratic governance? Who has the right to a voice in the public sphere? As suggested by the quotations above, attitudes regarding race, ethnicity, and religion are central to our political divisions.

We see these divisions play out in the inability of Congress to enact immigration reform and in raging controversies regarding the border. We see it as well in the Supreme Court’s dismantling of the 1965 Voting Rights Act and in legislation across the country in Republican-controlled states to make voting more difficult and even to make it easier for state legislatures to overturn elections. Republican complaints about “rigged elections” often turn on their conviction that only real Americans, not Democratic constituencies, should cast ballots.

▪ Economic inequality. An economic chasm – which continues to grow wider – separates the richest among us from everyone else. This disparity undermines social and political equality.

“We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” (First attributed to Louis D. Brandeis by Edward Keating on October 14, 1941.)

Outsized political clout – including access to decision-makers – is among the resources the rich possess in abundance. The Supreme Court has opened the door to unlimited dark money campaign spending. Furthermore, congressmen who do the bidding of the rich may expect to have cushy, lucrative opportunities after Congress. That counts for something. The Republican tax cuts, the foremost legislative accomplishment during Trump’s four years in the White House, were hardly driven by populist politics. Too often public policies fail to address the concerns of the majority.

Wealth inequality leads to stagnant mobility, inequality of educational opportunities and of career prospects, all of which stifle economic growth. As social segregation becomes more pronounced, the poor are relegated to unsafe neighborhoods, with increased risks to health and higher mortality rates. None of this is good for democracy.

▪ Excessive executive power that resists constitutional limits. Attention to the Imperial Presidency is hardly new, but neither has the problem diminished in recent decades. We have seen executive overreach in administrations of both parties. We might cheer the executive actions of the presidents of our party, but that doesn’t lessen the threat to democracy. During the Trump years – which brought us epic norm-busting, legal violations, and open contempt for the rule of law – things veered off the rails.

The link to Mettler and Lieberman's piece is found in Thomas B. Edsall's recent review, the title of which dramatizes the stakes, "Trump Poses a Test Democracy Is Failing." Other authors cited by Edsall provide observations that are hardly more sanguine.

“In speeches, ads and on social media, it is fast becoming the defining smear of the 2022 primary campaign season: RINO.” So says the Politico, which links to a Vox history of ‘RINO.’

Republicans at the turn of the 20^th century hurled the charge at Teddy Roosevelt. T.R., the trust-busting leader of the progressive movement, was clearly out of step with Republican ideology. In the ’30s and ’40s, the ‘me-too’ Republicans who went along with FDR’s proposals were also challenged as RINOs. The acronym experienced a resurgence with the election of Bill Clinton (as the Gingrich era was about to bloom) and has been a prominent part of Republican Party skirmishing ever since.

In each of these cases, RINOs were faulted for straying from conservative ideology as popularized (in word, if not in deed) by the Republican Party. In contrast, “Today, in a reflection of the GOP’s murkier ideological grounding in the Trump era, it’s a term reserved almost exclusively for lack of fealty to Trump.”

Almost exclusively. Asserting or acquiescing (and absolutely not contradicting) Trump’s big lie – that he lost to Biden fair and square in 2020 in a safe and secure election – is a requirement for avoiding the RINO accusation. But for ambitious Republican pols with an eye on their leader there’s also a stampede to embrace Trumpier positions than their GOP competitors (and sometimes even Trump himself). It is often jarring to watch this pattern play out.

The Republicans in Congress and on cable TV who have sided with Putin are, in David Jolly’s words (spoken last month after the Russian invasion), “cartoon politicians—people who are unqualified to be there, but for their ability to extract outrage from a body politic.”

Senators Tom Cotton, Ted Cruz, and Josh Hawley (with their degrees, respectively, from Harvard and Harvard Law, Princeton and Harvard Law, and Stanford and Yale Law) are not dumb, though in questioning Ketanji Brown Jackson last week, they appeared to be practicing cartoon politics.

Or perhaps not. While it is tempting to say of the three presidential wannabes acting out at a Senate Judiciary hearing to consider a nominee for the Supreme Court that – as Jolly suggested of the Republicans cheering on Putin – they have failed to understand “the gravity of the situation.” Instead, they shouted, interrupted, insulted, demeaned, twisted facts and context, fabricated outright, blew dog whistles, and sounded QAnon themes.

All of this was consistent with extracting outrage from the Republican base. But, while practicing cartoon senatorial civility, cartoon logic, cartoon advice and consent, they were by all intents and purposes practicing savvy intraparty politics. This was political theater, which was appropriate to the moment and beneficial to the republic – so say a couple of political scientists.

Matthew Glassman, in a post titled, "What is the point of confirmation hearings?" insists that "stupid political theater is good":

Even if you accept everything I’ve written in this post as the reality of the situation, you might not think any of this is normatively desirable.
I apologize if I’ve given you that impression. While I’ve mostly written here from a descriptive realist point of view, I also happen to be a fan of political theater. People use that term derisively, but it absolutely has it’s benefits.

Glassman approvingly quotes Jonathan Bernstein (from a piece titled, “Confirmation Hearings Are Political Theater and That’s OK”):

This kind of theater can convey some substantive material to the public. Hearings construct a public record to supplement the private deliberations that start as soon as a Supreme Court vacancy is announced. Hearings can also tell us lots of things about what politicians and political parties think is important. They can shine public light on previously obscure topics. Of course, what politicians and parties care about may seem foolish or worse, but that’s not the fault of the hearing process.

Fair enough. Let’s accept this view. The trio of Republicans are each trying to shape a narrative, bolster their own status, and appeal to the Republican base. That’s politics: the stuff of American democracy.

We can, as citizens and voters, make of this theatrical posturing what we will. Whether “foolish or worse,” it certainly tells us much about what these politicians and the Republican Party think is important.

[Editor's note, March 15: Extreme polarization, a factor contributing to our democratic impasse, results in partisans adopting views based on allegiance to their side, rather than on thoughtful consideration of an issue. Klein, in the first four paragraphs of his op-ed, relies on the Blue team falling prey to this phenomenon.]

The opening paragraphs of Ezra Klein’s current op-ed in the New York Times ("The Past and Future Are at Odds in Berkeley") are willfully spurious. In fairness to Klein (if it's 'fair' to excuse him), that beginning is clearly designed as a hook to keep his liberal readers in tow for the actual subject of the piece -- the clash between environmental policies put into place since the 1970s and the urgency of acting to combat climate change today -- which he covers more evenhandedly. (I’ll note that Jonathan Chait highlighted the same issue -- “Will Local Politics Cook the Planet” -- in New York magazine in January.)

I’m on board with Klein (and Chait) regarding climate change, but not regarding the controversy that Klein uses as an intro. Here’s how Klein begins:

There’s a strange story unfolding in Berkeley, Calif., right now. That may present as a tautology, but bear with me. This one provides a window into a problem that endangers us all.
An organization called Save Berkeley’s Neighborhoods, led by a former investment banker, sued the University of California, Berkeley for adding too many students, too quickly, without careful enough consideration of how bad students are for the environment.
If the number of students at U.C. Berkeley seems of questionable environmental relevance, well, I’d say you’re right. If this sounds to you like a bunch of homeowners who don’t want more college kids partying nearby, I’d probably agree. But the courts sided with Save Berkeley’s Neighborhoods and froze the university’s enrollment at last year’s levels, forcing it to potentially rescind admission to thousands of students and ordering it to conduct a deeper assessment of the harm students could inflict (more trash, more noise, more homelessness and more traffic were all mentioned in the court case, if you’re curious about the specifics).
This kind of NIMBYISM is noxious. The way to ease homelessness in Berkeley is to build more homes for everyone, not keep out a bunch of kids looking to better their lives. And if there’s too much trash, maybe nearby homeowners, who’ve seen their property values rise to astonishing levels in large part because of U.C. Berkeley’s gleam, should pay higher property taxes for more frequent pickup. But on its own, it’s hard to get too exercised about this suit. The world has bigger problems than the size of Cal’s incoming class.

Note first that in his later discussion of climate change, Klein doesn’t reveal the professions of the worthy residents of Cape Cod, Amherst, the Hamptons, or the state of Vermont, all of whom could be reviled as NIMBYs. Instead of an ad hominem argument, he focuses on the structural issues that find local residents (and even environmental organizations) employing environmental laws to oppose meaningful actions to alleviate the threat to our planet.

In the second paragraph (quoted above), though, he makes sure to inform us that the leader of Save Berkeley’s Neighborhoods is a former investment banker. (Editor’s note: I’ll cheerfully agree that we have a bloated financial sector, which is a drag on our economy, but the structural framework of the Berkeley story wouldn’t change one whit if a retired professor led the neighborhood group.) And behold Klein’s sarcastic denigration of an environmental report to assess the impact of population growth as “consideration of how bad students are for the environment.”

Despite the disdain he expresses, Klein doesn't come close to justifying his conclusion that “This kind of NIMBYISM is noxious.”

Contra Klein, any fair minded policy wonk would regard the number of residents (students or not) as unquestionably relevant to the environment of a crowded urban community. Berkeley residents of all stripes need not oppose “college kids partying” to be concerned with the state of their city.

I lived in Berkeley from 1972 to 1991. The population when I left was just over 100,000; there were roughly 30,000 students on campus. Demand for affordable housing far outstripped supply. I don’t know the numbers, but there was a highly visible group of unhoused people. The student population obviously had a significant impact on city services, city streets (many of which were sorely in need of repair), traffic, and – notoriously – parking. The city, during my stay in Berkeley, actively negotiated with the university regarding enrollment to alleviate the impact of university students, faculty, and staff.

Today the city has 124,000 residents and the student population is 45,000. While I no longer live in Berkeley, I’m confident that there is still a dire housing shortage in the community and that many people still live outside and in their cars. I’m betting that many of the streets are still in poor shape.

The quality of life for everyone is affected by high numbers of people and by the lack of affordable housing. That much should be obvious. Add that the University of California is a jewel, that UC Berkeley provides a superb education at an affordable price, and that there are far more well-qualified applicants than spaces available. That’s a problem.

The NYT article that Klein links to in his first sentence notes what has attracted the most attention, and the most powerful political pushback: the thousands of smart California high school students who can’t get admitted to the UC campus of their choice. The piece names Berkeley, Los Angeles, Santa Barbara, and San Diego as the “marquee campuses” of the UC system.

Prospective students (who are highly qualified) and their parents are outraged! They are angry at being redirected to another of the campuses (there are 5 other UC campuses offering undergraduate degrees), angry that enrollments at the marquee sites aren’t more plentiful, and angry that international and out-of-state students are admitted.

The latter has a special sting for many, in part because the campuses reap out-of-state tuition (roughly $30,000/year) for every non-Californian who attends. Because of budget limitations -- as state support has waned dramatically since the 1970s -- UC campuses have increasingly relied on out-of-state tuition to make ends meet. One letter writer to the Los Angeles Times referenced “the university’s greed in enrolling foreign and out-of-state students.” The president of Save Berkeley’s Neighborhoods pointed in the same direction, suggesting that “nonresident enrollment has displaced large numbers of qualified California residents.”

The debate in Sacramento has reflected this viewpoint without much evidence of a broader perspective or more nuance. As increasing numbers of California college-bound graduates have been turned away from their first-choice campuses, “legislators have exerted relentless political pressure on the university to add in-state students.” If it has occurred to anyone in the state legislature or the governor’s office that students from other states and countries represent an economic boom in California’s future, they’ve held their tongues or been drowned out. Roughly two-thirds of Californians are native-born. California has prospered in part because millions of folks have moved here in decades past -- often to get an education at our superb universities -- and have stayed.

This is a success story, though ironically many of the applicants who can’t get into the UC campus of their choice are the children of these earlier (foreign and domestic) immigrants. But no one in Sacramento was elected by appealing to California’s long-term future, not while tens of thousands of high school graduates are clamoring to get into their first-choice UC campus.

There are nine University of California campuses, 8 of which have undergraduate programs (and 23 campuses in the California State University system). Everyone wants their first choice, but demand is high and space is limited. International students and students from other states and jurisdictions add to diversity and benefit the state economically and culturally. But that’s no consolation for a high school student facing disappointment.

The push from the state legislature to increase enrollment at the ‘marquee campuses,’ while understandable, clearly has a deleterious impact on the quality of life for campus communities. The former investment banker leading Save Berkeley Neighborhoods observed, "Since 2005, UC Berkeley has added about 13,000 students but only 1,600 beds. This has created a massive housing shortage in Berkeley."

A knee-jerk reaction to this controversy -- based on casual dismissal of the concerns of investment bankers and sympathetic feelings toward the highly diverse group of young people about to begin college -- may draw liberals into Klein's piece. But (the sketch of an) argument Klein offers is specious. The neighborhood opposition to more students without more student housing is not in the least unreasonable.

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.