In this installment of The Scheme (below) Sheldon Whitehouse compares the operation of the right-wing front groups and fake trade associations that promote climate change denial and shows that these are the same groups, funded by the same donors, involved in court capture and other right-wing projects. The larger aim of this network is to end the administrative state by destroying government agencies’ power to regulate business.
Whitehouse continues to lay out the orchestrated cascade of dark money that funds an energetic, litigious web of right-wing activists; groups like the Heritage Foundation, the Cato Institute, the Competitive Enterprise Foundation, Donors’ Capital and Donors’ Trust, the Charles Koch Foundation, the Bradley Foundation, the US Chamber of Commerce. He runs through a few of their wish list items, like the lawsuit, brought on behalf of a paid plaintiff, to attack the constitutionality of Elizabeth Warren’s Federal Consumer Protection Agency.
It is not only a flotilla of coordinated amicus briefs Federalist Society lawyers are submitting to the Federalist Society 6-3 majority on Trump’s Supreme Court, on behalf of various united front groups, it is the lawsuits themselves, selected, as Shelby County v. Holder was, to achieve specific long sought reactionary goals.
To give bolster the illusion that their cases speak for all Americans, there is a women’s front group, the Independent Women’s Forum, funded by dark money, that pops up to present a right-wing free market woman’s point of view in various cases, a recent Second Amendment case, a contraceptive case, a case to limit the Environmental Protection Agency’s authority to regulate greenhouse gases, in the Americans for Prosperity Foundation case that granted a constitutional right to unlimited dark money (signed off on, as Whitehouse says, by the dark-money justices).
Whitehouse ties together cases originating from the U.S. Chamber of Commerce (sudden champion of Climate Science denial) which was, grotesquely enough, the same conservative political outfit that paid for the fucking Powell memorandum, the blueprint for a corporate takeover of the nation, written decades ago. In that memo Powell identified an activist federal judiciary as the key instrument for social, economic and political change, indispensable for kneecapping agency power across the board. Louis Powell, the tobacco lobbying lawyer, became Justice Powell shortly after writing his influential memo for the US Chamber of Congress. Justice Powell, appointed by Nixon, a pox on both of their houses.
This series should be required viewing for every high school and college course in civics and American government.
There are conspiracy theories, often based purely on paranoia about unexplainable vexations and there are actual conspiracies that can be mapped using real data. How did this nation arrive at a place where almost 70% of one of our two major political parties believes that a widely disproved lie (massive Democratic voter fraud, abetted by disloyal Republicans) justifies political violence and the nullification of millions of legally cast ballots?
You can read books like Jane Mayer’s great “Dark Money” and Nancy MacLean’s detailed follow-up, “Democracy in Chains” and emerge with a clear view of how super-wealthy American reactionaries have methodically used their fortunes to shift the cultural debate and the government and its laws toward their goal — unfettered enjoyment of perpetual privilege free from the “coercion” of “majoritarian tyranny.”
They have done this by tireless engineering work, work that resulted in the Supreme Court declaring that spending infinite amounts of “dark money” to influence elections and law enforcement is simply free speech, protected under the First Amendment. After Charles Koch became convinced that their reactionary ideas could never win via the ballot (his brother, as VP candidate on a Libertarian ticket got less than 1% of the vote in the 1980 presidential election) they began engineering alternative influence mechanisms. They created many “think tanks,” endowed university chairs, gave scholarships to promising young right-wing thinkers, deployed armies of lobbyists, used smart, audacious media strategies, funded “grassroots” movements like the Tea Party when the time was right to show that ordinary Americans coast to coast were united in opposition to a tyrant of mixed-race who was possibly not even legitimately entitled to be the president. They used these devices to create “climate change skepticism,” a fever over gun rights, to gin up a host of violent debates to divide a populace that would otherwise be united in opposition to this powerful elite’s larger plan — eternal luxury for unaccountable, unregulated corporate masters of the universe.
One of their most important innovations is an almost forty year-old fraternity that selects true believers for the highest lifetime judicial positions in the nation. These frat brothers (and some sisters) are then in position to have the final unappealable word on what is constitutional and what is illegal in the USA. Unlimited expenditures of secretly donated money becomes protected free speech. Five of their frat brothers have the power to overturn a 98-0 Senate vote, and the enthusiastic support of a conservative Republican president, with a few pages of bloodless legalistic right-wing fantasy, as John Roberts did in his infamous Shelby County v. Holder decision that ended federal enforcement of minority voting rights. Since we now have a half-black president, he reasoned, we live in a post-racial society and there is no longer need to enforce the Voting Rights Act of 1965. 5-4, case closed. If you read the decision, the dissent had the better of every argument, but, no matter, there is no appeal available once the majority has signed on. We can all see the predictable results of gutting enforcement of a law that successfully evened the electoral playing field after a century of winked-at legal racism at the polls in many states.
The Federalist Society is a quasi-religious right-wing fraternity that trains young law students and lawyers in its conservative doctrine and grooms them to become solid, right-wing judges. It provides members with fellowship, support, a network of powerful mentors and a career path to power for the most loyal and ambitious among them. Six of its most illustrious members and supporters now compose the 6-3 Trump Court majority.
It is not entirely unfair to call a faith based organization like this a cult, since it demands adherence to a strict set of values — “originalism” (faith to the Constitution without those pesky post Civil War Amendments) the rights of corporate “persons”, the right for everyone to have guns, the right of the religious to discriminate, based on their faith, the rights of the fetus — and rewards that adherence to these values with advancement to lifetime judicial appointments. All three of Trump’s picks were handed to him off a list Leonard Leo and his friends at the Federalist Society drew up, as Trump had promised. Doing that was one of the few promises Trump ever kept in a life of compulsive “transactionalism”.
Here is Senator Sheldon Whitehouse on The Federalist Society:
We live in a culture of distraction based on marketing to each of us personally every possible moment. The power to sell us things (and ideas) every waking moment has never been greater than now, when we carry our virtual community with us everywhere, in our pocket.
The constant distraction of monetized social media during these desperate times makes mass influence much easier, “social media” also creates the illusion of community and democracy by making mass “personal” conduct, like the so-called Arab Spring or the January 6 MAGA riot at the Capitol, events in which many choose the same personal action at the same moment, more likely.
So much noise and bad air is flying at us, constantly, in a torrent directed at each of us personally, that it is almost impossible to keep the larger view of what is happening in front of our senses for more than a moment. The heightened anxiety of living in a competitive, highly individualistic culture where the stakes for losing include homelessness and death for lack of medical insurance, is good for only one thing, the corporate bottom line — consumerism. Fear and anxiety sell! When the going gets tough thetough go shopping.
As consumers about to spend our money, our power of personal choice is at its greatest. What specific variety you consume and when you consume it (on demand, it doesn’t get better than that!) are really the only inviolable US freedoms at the moment, so who would not feel better when making consumer choices, even ones thrust at us?
Our challenge in this environment is how to escape from these ever more complete personal/social/political bubbles once in a while to see the bigger picture, the historical one. How to take in, focus on and retain important small details that later become so important in the big picture.
It’s often hard to see a direct line in a mass of information until someone else lays it out for us. Heather Cox Richardson, historian and writer, has emerged as one of our best in this moment in history. Here’s a bit that caught my eye from the other night’s Letters from an American:
Ukraine, which became independent from the old U.S.S.R. in 1991—December 2 is the anniversary of Poland and Canada becoming the first to recognize its independence, actually—is not part of NATO. It had begun the process of applying for membership in 2008, but in 2010, Russia-allied oligarch Viktor Yanukovych, whose campaign was being handled by Paul Manafort, won the presidency and turned the nation away from NATO and toward Russia.
In 2014, Ukrainians rose up and overthrew Yanukovych, who fled to Russia (thus putting Manafort out of a job and freeing him to run Trump’s 2016 campaign). Later that year, Russia invaded Ukraine’s Crimea, prompting the U.S. economic sanctions that Putin desperately wants lifted. Ukraine’s interest in joining NATO jumped.
Heather’s point in that post was to detail the autocratic Putin’s high-stakes brinksmanship in his current threat of Ukraine, as Russia threatens all-out war with Ukraine, not to expose the Trump connections that may underlie the ongoing crisis. But read these lines and see how much of the current GOP’s ongoing anti-democratic corruption is encapsulated in them.
in 2010, Russia-allied oligarch Viktor Yanukovych, whose campaign was being handled by Paul Manafort, won the presidency and turned the nation away from NATO and toward Russia.
Trump’s unpaid, volunteer campaign manager, Paul Manafort, had spent years in Ukraine, making many millions of dollars, grooming a Russia-allied oligarch to become president of Ukraine. Manafort, the man of ostrich jackets and the lavish lifestyle, was not one to do anything without a big pay day. Manafort’s candidate Viktor Yanukovych was in office until 2014, openly exercising corrupt power when
Ukrainians rose up and overthrew Yanukovych, who fled to Russia (thus putting Manafort out of a job and freeing him to run Trump’s 2016 campaign).
This is a huge background detail in Trump’s shakedown call to the new Ukrainian president asking him to do him a political favor, though, by announcing a corruption investigation into Hunter Biden. That call led a whistleblower to report the improper use of presidential power, which in turn led to Trump’s AG burying the whistleblower complaint, as one does when one’s power is unrestrained by any principle. Nancy Pelosi foolishly bet the farm on Americans being outraged that an American president would try to extort a political favor from our allies Ukraine. To which most Americans responded “Ukraine? What is a fucking Ukraine?”
Manafort, the Republican Senate intelligence committee report found, regularly met with and gave sensitive polling data to Konstantin Kilimnik an agent of Mr.. Putin’s. Mr. Putin did everything possible to help swing a close election to his useful idiot Mr. Trump. These findings were confirmed by Little Marco (Rubio) and his Republican committee. Manafort lied under oath, was convicted, sentenced, pardoned by Trump like his colleague Roger Stone, like the insane Mike Flynn. Nothing to see here
To many average Americans, the only question regarding Ukraine is whether it, not Putin, actually helped Trump squeak his way into the White House.
Senator Sheldon Whitehouse has been laying out, in a now nine part series of presentations in the Senate that he calls the Scheme, the billions spent (tax-deductibly) over the decades by increasingly demanding right-wing billionaires to take over state governments (with organizations like the American Legislative Exchange Counsel — ALEC, authors of Stand Your Ground, anti-mask mandate, voter “integrity” and anti-abortion laws) and capture the federal courts.
Their larger goal is to end all government regulation of business, lower their own taxes, shrink government and enjoy the liberty of a luxurious life without the threat of coercion by a meddling, overeaching government that panders to the “takers”, that undeserving, ever expanding majoritarian tyranny. Their biggest advantage in this fight is an inexhaustible fund of unregulated, untraceable, “dark money”, permitted under the laws that make their political organizations qualify as non-profits. I visited ALEC’s website the other day, and, bingo:
As long as the Supreme Court they have orchestrated into being continues to rule in their favor (and the 6 reactionary majority are all members of the same far-right ideological fraternity, literally, a career-networking frat founded on the 1980s by those same dark money billionaires), they will remain safe from things like “Kamala Harris’s unconstitutional disclosurerequirements.”
Imaginethe irreparable harm that would be done to America’s greatest political donors if the identity of those secret donors who funded Trump’s $50,000,000 ad buy to promote the lie that Trump was robbed was forcibly unmasked. Those ads worked fabulously, by the way, about 2/3 of Republicans believe there was massive fraud in a bipartisan conspiracy so diabolical that no evidence was ever found!
It’s impossible to hear the “arguments” and read the summary, unsigned 5-4 and 6-3 narrowly ruled partisan decisions from the Trump Supreme Court without suspecting that some kind of fix is in. Here’s Whitehouse on the part of the dark money machine that selects cases the Supreme Court uses to change the laws for decades (like the Shelby County case that overruled a 98-0 Senate vote and set voting rights back fifty years). Their various dark-money funded legal arms submit countless “friend of the court” legal briefsthat provide the Gorsuchs, Kavanaughs and Coney-Barretts everything they need to craft facially plausible eye-of-the-needle legal arguments:
What could go wrong? After all, once they throw a coveted chunk of red meat to their religious base by overturning Roe v. Wade, it will only be poor women, and girls without family connections (the bulk of the US plague of maternal and infant mortality deaths anyway), who will suffer the abolition of of this long time woman’s constitutional right. Everyone elsecan just fly to Switzerland. What’s the problem?
A recent pre-pandemic survey found that 61% of Americans reported feeling lonely. The epidemic of loneliness is painful in its own right, plus, it leads to destructive attempts to escape the pain of feeling isolated and eternally alone in the universe.
Lonely people look for community on-line and find “social media” groups where their worst suspicions are confirmed in sickening detail: fucking Tom Hanks drinks the blood of children he has kidnapped, after doing sexually perverse things to them!
Words on a page, even those written by our most skilled users of language, almost never contain the nuance conveyed by a wry twinkle in the eye, a shrug, a sarcastic body movement in concert with the words spoken — a pregnant pause.
Lonely people staring at screens take the words they read, words they hope will somehow bind them to others, at face value. Of course George Soros, Barbara Streisand and fucking George Clooney had something to do with those vile accusations against innocent, humble, nonpartisan, never a black out drunk, Brett Kavanaugh!
Aside from an epidemic of suicide caused by loneliness and despair, aside from the political chaos, the literal madness, it has unleashed among desperate people looking for simple answers to complicated, vexing issues, aside from the outward rippling misery loneliness causes, loneliness is, at its heart, a very painful condition.
A writer named Steven Petrow published a thoughtful essay called I’m not alone in feeling lonely. There are ways to fight loneliness. It appeared in today’s Washington Post and has been generously “gifted” to you by a supremely generous man of the people, the illegally anti-unionist Jeff Bezos.
A thoughtful essay by Mr. Petrow, I thought. When a painful condition is stigmatized, and those who talk about it are treated as pathetic losers, the pain of that condition is greatly compounded. The first step to dealing with anything painful is to acknowledge that it hurts and talk to others about it, tough guy.
It helps nobody you care about, and yourself least of all, to pretend you’re fine when you have the cold arrow of loneliness stuck in your chest.
If you feel lonely, or know lonely people, this article is worth a read, especially during this time of year, the “holiday season” when the days grower shorter, expectations for merriness soar and suicides spike.
In an op-ed entitled What ‘My Body, My Choice’ Means to the Right, Michelle Goldberg puts the issue (based in the Christian jihad against abortion, no matter how unbearable the circumstances of the pregnancy, or how terrible the consequences for the mother are) into stark perspective.
I read Michelle Goldberg’s piece before yesterday’s theatrical down at the Supreme Court. There is much to say about that, and time to write about it soon. For now, her piece beautifully sets up the grotesqueness of the “my body, my choice” troll picked up recently by the nation now called Trumpists.
It also sets up a discussion of this cynically installed, unappealable, lifetime right-wing fraternity chosen for their cult-like willingness, in the case of abortion, to absurdly pretend that conservative Christian religious belief is the only real constitutional consideration at play — the question of the immortal Christian soul of that poor fetus, even when it is little more than a collection of cells, potential life, and no matter what the mother will have to suffer to protect this potential life.
Remember, this religious-based argument about preventing the mass-murder of innocent embryos and fetuses (condemned to eternity in purgatory after their killing, the faithful believe) was the galvanizing issue chosen, among many field tested and focus-grouped issues, as the single cause to unite the millions of religious Evangelical Christians with religious Catholics and the rest of the “moral majority”, that solid 39% percent of largely rural Americans who seem to faithfully believe whatever their leaders tell them to believe. It used to be abhorrence of homosexuals that drove this demographic to the polls, that was the difference maker in the 2004 reelection of Liz Cheney’s dad, and it’s still an issue to a lot of them, but this abortion one is the winner, by a mile, has been a standby and rallying cry for decades.
Here’s Michele Goldberg:
Here’s a bit of evidence that we live in a simulation controlled by someone with a perverse sense of humor: At the very moment that Roe v. Wade could be overturned, the American right has become obsessed with bodily autonomy and has adopted the slogan “My body, my choice” about Covid vaccines and mask mandates.
Feminists have always known that if men — or at any rate cis men — could get pregnant, abortion would be a nonissue. The furious conservative reaction to Covid mitigation measures demonstrates this more than any hypothetical ever could. Many on the right, we can now see, believe it’s tyranny to be told to put something they don’t want on or in their bodies in order to save lives.
There is, to be fair, at least one prominent illiberal conservative, Harvard’s Adrian Vermeule, who has defended vaccine mandates, writing, “Even our physical liberties are rightly ordered to the common good of the community when necessary.” More typical on the right, however, is a paranoid sense that the vaccines are tied up with occult forces of social control.
In “Why I Didn’t Get the Covid Vaccine,” an essay in the Catholic anti-abortion journal First Things, the theologian Peter Leithart quotes a book called “The Great Covid Panic”: “A very effective way to dominate people is to convince them they are sinful unless they obey.” He invokes totalitarian “biopolitical regimes” that seek to exercise power over the body: “Once upon a time, the ruler bore a sword; now, a syringe,” he writes.
Of course, many American women will soon be faced with an infinitely more invasive form of biopolitical control, courtesy of First Things’ allies. On Wednesday, the Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, a case dealing with Mississippi’s ban on abortions after 15 weeks. It’s possible that the justices could gut Roe without overturning it outright, but after they let Texas’ abortion bounty law stand, at least for the time being, I’m expecting the worst. If Roe is tossed out, most abortions will instantly become illegal in at least 12 states, and they will be severely restricted in others.
We are seeing a preview of what this world will look like in Texas, whose six-week abortion ban remains in effect. There are no exceptions for rape and incest. Women with wanted pregnancies that go tragically wrong have to either cross state lines for treatment or wait until their lives are in immediate danger. “Many doctors say they are unable to discuss the procedure as an option until the patient’s condition deteriorates and her life is at risk,” The New York Times reports.
It’s striking, the gap between the bodily impositions people on the right will accept in their own lives and those they would impose on others. When it comes to themselves, many conservatives find any encroachment on their physical sovereignty intolerable, and arguments about the common good irrelevant. Yet their movement is dragging us into a future where many women will be stripped of self-determination the moment they get pregnant. Choices, it seems, aren’t for everybody.
As the feminist Ellen Willis once put it, the central question in the abortion debate is not whether a fetus is a person, but whether a woman is. People, in our society, generally do not have their bodies appropriated by the state. It’s unimaginable that they would be forced to, say, donate blood. As we’ve seen, even mask and vaccine requirements elicit mass umbrage. Americans tend to believe that their bodies are inviolate.
“You can’t make a case against abortion by applying a general principle about everybody’s human rights; you have to show exactly the opposite — that the relationship between fetus and pregnant woman is an exception, one that justifies depriving women of their right to bodily integrity,” Willis wrote in 1985. To ban abortion is to say that pregnant women are not entitled to the authority over their physical selves that other adults expect and demand. Mississippi’s attorney general, Lynn Fitch, who will defend her state’s ban before the Supreme Court on Wednesday, has also filed three lawsuits against President Biden’s vaccine mandates. On Nov. 12, a federal appeals court stayed one of them, the mandate dealing with companies that have over 100 employees. Judge Kurt D. Engelhardt, a Trump appointee, wrote that the public interest is “served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions — even, or perhaps particularly, when those decisions frustrate government officials.”
Engelhardt, a former member of Louisiana Layers for Life, obviously doesn’t believe that all individuals should have the liberty to make “intensely personal decisions according to their own convictions.” But that doesn’t mean he’s a hypocrite. He simply appears to believe, as much of the modern right does, that there are some people who should be subject to total physical coercion, and some who should be subject to none at all.
“Oh, the honor system, of course, of course, we’re on the honor system, on my honor. I’m on my honor, absolutely. You have my word, 100%. I swear to you on the grave of my sainted mother, on my sacred honor.”
On September 29, Trump went to his scheduled debate with Democratic candidate Joe Biden, arriving too late for testing. Chris Wallace of the Fox News Channel, who was the moderator at the debate, later said the event was relying on the “honor system.” Trump railed and snarled at Biden, who was close enough to him to have been in danger. Trump’s contingent refused to wear masks despite rules at the venue to do so. At least 11 people tested positive after the debate.
This honorable gentleman’s assurance was given after a man famous for his punctuality contrived to arrive at a live debate hosted by a FOX moderator too late for mandatory testing, three days after the first (undisclosed) positive test for the strongman who thought wearing a mask made him look vulnerable, weak, who’d made a strong branding decision to be the tough guy, like Bolsonaro in Brazil, as opposed to the wimpy and unmanly mask-wearing Pence, who he’d soon blame for betraying him and send a mob down to threaten, chase, perhaps rough up, or maybe actually hang. The strong contrast to weak, old Biden with his comically gigantic mask.
The tough guy assuring the others “on his honor” that this time he was actually not lying, that he’d never tested positive for Covid in recent weeks (let alone three days earlier) must have been thinking what easy marks, what pathetic losers noncriminals are… as he concealed his recent positive test for a disease that was ravaging the world, one he’d dismissed as a hoax as America led the world in Covid deaths, one he swore on his honor that he’d tested negative for (still his story).
That massive Covid disruption was not his fault in any way, whatever those exaggerated, fake death tolls supposedly were, he’d totally delegated that, to his dimwit alter-ego, his son-in-law the Covid Czar (rewarding his glorious work making historic peace in the Middle East, fixing the federal bureaucracy and ending the Oxycodone overdose crisis). Pence was also assigned Covid Czar, with equal responsibility for the outcome, but with less power than Kushner and a much better guy to send an angry mob after than the husband of his cherished daughter.
Of course, by refusing to wear a mask while bellowing at Biden he was probably hoping to spew enough active Covid to infect and kill the old man he hated and had vowed he could only lose to in a rigged election. He gave the people who prepped him for the “honor system” debate Covid. Loyal Chris Christie got a serious enough case of the deadly disease to need heroic, very expensive emergency treatment at a hospital, and hospitalization, extraordinary measures necessary to save his life. Measures unavailable to virtually any of the hundreds of thousands of Americans who died of the pandemic and continue to die of it.
But really, when you’re at the top of the food chain, the apex predator, the only question is, how many more times with this stupid “honor system” bullshit? Isn’t it enough, already, with the make believe about honor systems, not lying, even if it helps you, being nice just so somebody else can fuck you? Nobody has honor, let’s face it, why insult people’s intelligence? You’re a mark that’s going to get strongly played if you believe in that honor bullshit, take my word for that, loser.
Now, did you take care of that little thing we talked about?
Excellent presentation of the galling larger issues in the the religious right’s long, male-dominated fight against women’s bodily autonomy. Well-done, Ari Melber.
The Federalist Society’s reactionary 6-3 majority gets ready to deliver on some of their radical ideologically-driven promises, after demonstrating their zeal a few times already when they had a 5-4 majority (see examples below). Taking no chances on any of these jurists being “compromisers” of their deeply held, often religiously fervent, beliefs, the 6-3 majority was carefully vetted to avoid what happened when some Republican appointees wound up being amenable to compromise in recent decades. As Ruth Marcus wrote in the Washington Post the other day (all quotes are from that essay, linked below):
. . .[O]ver time, and under the tutelage of the conservative Federalist Society, Republican presidents, beginning with George W. Bush and intensifying with Trump, became better at picking reliably conservative justices. There were to be no more David Souters, who turned out to be a solid liberal vote; no more Sandra Day O’Connors, whose background as an Arizona state legislator often inclined her to compromise; no more Anthony M. Kennedys, the pale-pastel conservative named to the court after Ronald Reagan’s first choice, Robert H. Bork, was resoundingly defeated.
Future justices would have judicial paper trails to provide assurance of their conservative bona fides on everything from explosive social issues to government regulation, a topic important to legal conservatives and their financial backers. And so the post-Rehnquist years produced the Roberts court, adding not only the chief justice but also Samuel A. Alito Jr. and, with Trump’s election and Senate Majority Leader Mitch McConnell’s (R-Ky.) stage-managing, three new conservative justices: Neil M. Gorsuch, Brett M. Kavanaugh and Barrett.
Even Before McConnell audaciously rammed through a sixth hardcore conservative, a member of a Christian religious cult, for good measure, (a Harvard law professor cited in the article correctly refers to these hardcore “conservatives” as reactionaries, partisan resisters of social change intent on turning the clock back at any price):
The conservative majority notched steady victories. It let federal executions resume for the first time in 17 years. And its decisions dramatically moved the law on religion, simultaneously carving out greater protections for religious freedom and lowering the barrier of separation between church and state. Religious institutions received exemptions from having to comply with anti-discrimination laws, even as states were required to provide equal benefits to religious and secular private schools. In other words, churches could discriminate but could not be discriminated against.
The Biden administration, after McConnell orchestrated the reactionary 6-3 majority (and recall, the blocked Merrick Garland nomination would have made the court 5-4 the other way), meanwhile waits for a team of legal experts, appointed in April, to issue a report confirming that it is constitutionally permissible to add justices to the Supreme Court (though apparently Biden has no will to do that [1]). The U.S. Constitution gives no set number and there have been different numbers of justices at different times in our history.
Ruth Marcus gives detailed examples of the “nonpartisan” court in action, from an excellent and chilling essay called The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation recently published in the Washington Post (graciously gifted to you by the supremely generous Jeff Bezos) about what these highly partisan culture warriors are preparing to do, in this term and for as long as they live.
My only problem with Marcus’s essay is her conclusion that rebalancing the court by adding nonpartisan justices is a “remedy worse than the disease.” Her position is that the left (one could say representative democracy itself) has simply been outplayed by canny partisans like Mitch McConnell and Leonard Leo (longtime VP of the Federalist Society who led the well-funded campaigns to support the Supreme Court nominations of John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) who have delivered a solid, carefully vetted, ideologically-driven 6-3 reactionary majority that is now immune to the compromise that rules a 5-4 court.
Marcus seems to urge us all to resignedly strap in for the next thirty years or so as this band of zealous partisans rewrites the Constitution, brazenly, sometimes wildly, for a few generations of unchallengeable right-wing rule. We who are not enthusiastic Trumpists will have to content ourselves with excoriating dissents from the three judge’s powerless to alter any decisions, no matter how wrongly decided.
Here are a few examples from from a long essay, analyzing several grievous decisions by this new 6-3 court, well worth reading.
Months later, with Joe Biden in office, the partisan tinge to the majority’s decision-making became clearer. Having stepped in time and again on behalf of the Trump administration, the court rebuffed a Biden administration request that seemed at least as worthy of emergency intervention. It involved the Trump administration’s Migrant Protection Protocols, better known as the “Remain in Mexico” policy, under which tens of thousands of asylum-seekers had been required to wait across the border, often in squalid and dangerous conditions, as they awaited hearings.
The policy had been put on hold during the pandemic; the Biden administration, on taking office, suspended and ultimately terminated the program. In August, a Trump-appointed district judge in Texas took the extraordinary step of ordering the administration to start it back up. The appeals court declined to intervene. So Biden’s acting solicitor general, Brian H. Fletcher, turned to the justices with an urgent request, arguing that the injunction “imposes a severe and unwarranted burden on Executive authority over immigration policy and foreign affairs.”
The justices had seen this issue before, actually. When immigration rights groups challenged the legality of the Remain in Mexico policy and a different district court judge blocked it from taking effect, the Trump administration raced to the high court seeking a stay. Then, the court, over Sotomayor’s objection, granted the request.
Somehow, when the Biden administration asked for a similar accommodation, none was forthcoming. The trial court order remained in place, over the objections of the three liberal justices. If anything, the interference with presidential prerogative and international relations — ordering a new administration to resume its predecessor’s policy — seemed more severe than when the Trump administration won its stay. It was hard to see what was different here, except that one petitioner was named Trump and the other Biden.
Here’s another unsettlingly juicy paragraph from the same essay:
The other conservative justices fumed about what they viewed as the court’s disregard for religious rights [during the pandemic], and over the following months their anger only grew, expressed in acerbic dissents. Then Barrett arrived — and with her, a dramatic change in the law, on Nov. 25, 2020, just a month after the Senate voted to confirm her. At issue this time was an executive order issued by New York Gov. Andrew M. Cuomo, imposing strict limits on attendance at religious services in areas of high covid spread.
Now, the conservatives had a new justice on their team and little patience for deference to state officials who seemed to favor acupuncture clinics and laundromats over churches and synagogues. “Even in a pandemic, the Constitution cannot be put away and forgotten,” the five-justice majority wrote in an unsigned opinion. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The case was striking for the public display of hostilities between Gorsuch and Roberts, an unusual glimpse into the tensions that simmered within the conservative camp as well as the internal sniping about Gorsuch, who had arrived at the court without the deferential demeanor of a junior justice.
In a sneering concurring opinion, Gorsuch took aim at the chief justice’s concurrence in the California case a few months before. “Mistaken from the start,” Gorsuch wrote, and it got uglier from there. The “judicial impulse to stay out of the way in times of crisis … may be understandable or even admirable,” he lectured, but “we may not shelter in place when the Constitution is under attack. Things never go well when we do.”
The chief’s response was subtler but no less acidic, remarkable to those accustomed to Roberts’s generally even, above-the-fray temperament. Gorsuch had taken Roberts to task for having “reached back 100 years” to find a supportive precedent, the court’s 1905 decision in Jacobson v. Massachusetts upholding fines for failing to obtain smallpox vaccine.
In reply, Roberts wrote that Gorsuch was the one who was overreacting to a perfectly logical citation. “While Jacobson occupies three pages of today’s concurrence, it warranted exactly one sentence” in the California case, Roberts wrote. “What did that one sentence say? Only that ‘[o]ur Constitution principally entrusts [t]he safety and the health of the people to the politically accountable officials of the States to guard and protect.’ It is not clear which part of this lone quotation today’s concurrence finds so discomfiting.” This was the judicial equivalent of asking, “What’s your problem, dude?”
Even more than the tensions between the two men, however, the case underscored two new realities on the court. First, Roberts was no longer the pivotal player. He had been outvoted.
Second, this new majority wasn’t about to let prudence get in the way of exercising power. Roberts had voted to leave the New York restrictions in place even though, he said, they “do seem unduly restrictive.” Cuomo had redrawn the affected areas, he noted, so that the churches and synagogues that brought the caseweren’t any longer subject to attendance caps. Therefore, Roberts reasoned, the court had no need to issue “an order telling the Governor not to do what he’s not doing.”
The new majority wasn’t buying it. “The applicants remain under a constant threat,” they said. After all, why put off deciding something until tomorrow if you’ve got the votes today?
And one last, especially chilling and consequential ruling about facially discriminatory state election laws that are “merely” partisan and not provably, intentionally racist (foreshadowing the fate of anything that Congress might theoretically achieve, Manchin, Sinema and 9 Republicans permitting, with the stalled Freedom To Vote Act and the John Lewis Voting Rights Advancement Act):
But if one case from the 2020 term epitomized the brazenness of the new majority, and signaled more to come, it was Brnovich v. Democratic National Committee, decided on the last day of the term. This time, in a case about voting rights, the conservatives were united, with Roberts fully on board.
Since his service as a young lawyer in the Reagan administration, Roberts had been a long-time antagonist of a broad reading of the 1965 Voting Rights Act, which he saw as an affront to states’ rights and an unnecessary artifact of what he views as a bygone era of explicit discrimination.
In 2013, Roberts wrote the 5-to-4 majority opinion in Shelby County v. Holdereviscerating Section 5 of the Voting Rights Act, the critical mechanism that required jurisdictions with a history of voting discrimination to obtain advance approval for voting changes — known as “pre-clearance” — from the Justice Department. For decades, this provision safeguarded the votes of millions of minorities — and drove Republicans in the South and other covered areas to distraction. In Shelby County, Roberts led the charge to neuter the law.
“Our country has changed” since the Voting Rights Act was passed, Roberts proclaimed, with arguably excessive optimism. In any event, he assured anyone who might be concerned, “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in” Section 2.
That would wait for Brnovich. Section 2 allows after-the-fact challenges to changes in voting procedures. In a 1980 decision,the court held that Section 2 applied only to intentional discrimination, not to practices that have the effect of disadvantaging minority voters.
In the aftermath of the 1980 ruling, Congress — yes, it was a different era — passed a new, strengthened version of Section 2 designed to make clear the law barred practices with discriminatory effects, whatever the motive. The new Section 2 prohibited any voting practice that “results in a denial or abridgment of the right … to vote on account of race or color.”
For years, that provision had taken a back seat to Section 5, because pre-clearance wassuch a powerful tool. But in the grim aftermath of Shelby County, voting rights advocates sought to expand the use of Section 2.Advertisement
Brnovich was the high court’s first take on this effort — and it did not go well. The case involved two Arizona voting rules: The first was a state policy that disqualified an entire ballot that wascast in the wrong precinct — even if some parts of the ballot, say for candidates for statewide or federal office, were still valid. The second was a law that made it a crime for most third parties to collect and deliver ballots to election officials — what Republicans pejoratively term “ballot harvesting.”
It was easy to see — if you cared to look — how both rules had a discriminatory impact on minority voters, in particular on Arizona’s population of Native American voters. As Kagan outlined in a scorching dissent, Arizona is a national leader in tossing otherwise valid votes cast in the wrong precinct; in 2012, it accounted for almost 1 in 3 of such discarded ballots, 11 times the rate of the nearest contender, Washington state.
And the Arizona rule clearly operates to disadvantage minority voters. In 2016, Hispanic, Black and Native American voters were twice as likely as Whites to have their ballots discarded. Alito’s majority opinion sniffed that this was no big deal — only a sliver of minority voters’ ballots (around 1 percent) was affected. Kagan: “A rule that throws out, each and every election, thousands of votes cast by minority citizens is a rule that can affect election outcomes. If you were a minority vote suppressor in Arizona or elsewhere, you would want that rule in your bag of tricks.”
The ballot collection rule was even more discriminatory. Most Arizonans vote by mail. But access to mail is severely limited for the state’s Native American voters. Just 18 percent of Native Americans in rural counties have home delivery, compared with 86 percent of White voters in those same counties. Getting to a mailbox or post office can mean a drive of up to two hours. Between a quarter and half of Native American households in these communities lack a car, according to evidence before the court. So relying on third parties to collect and deliver ballots was a regular practice for Native American voters — until Arizona, seizing on the opportunities created by Shelby County and the end of pre-clearance review — made it illegal to do so. Never mind the absence of evidence that the practice resulted in fraudulent votes.
In his opinion for the six-justice majority, Alito grappled with almost none of this. As Kagan pointed out, “Except in a pair of footnotes responding to this dissent, the term ‘Native American’ appears once (count it, once) in the majority’s five-page discussion of Arizona’s ballot-collection ban.”
Yet what was particularly astonishing was the majority’s disregard of its own supposed principles, such as careful adherence to statutory text. Alito didn’t merely ignore Section 2 — he engaged in a total rewrite. He invented new tests, all designed to shrink the reach of the law — a law Congress had already revised to make clear its intent to provide broad coverage crystal clear.
How big was “the burden imposed by a challenged voting rule”? Did the state’s “entire system of voting” provide enough other opportunities to cast a ballot? What about “the strong and entirely legitimate state interest in preventing election fraud”? None of this was in the law.Advertisement
Kagan’s dissent pulsated with fury, justifiably so, over the majority’s blithe abandonment of its professed commitment to textualism. “The language of Section 2 is as broad as broad can be,” she noted.“But the majority today lessens the law — cuts Section 2 down to its own preferred size. … No matter what Congress wanted, the majority has other ideas. This Court has no right to remake Section 2.”
No right, perhaps, but all the power. Not a single conservative justice put a limiting construction on Alito’s destructive interpretation of Section 2. The only concurrence came from an even more conservative direction: Gorsuch, joined by Thomas, wrote to say it wasn’t even clear there was any right for private parties to sue under Section 2 at all.
In the uproar over Alito’s majority opinion, the Gorsuch/Thomas concurrence received little attention, but it was an especially dishonest piece of work. To support its unfounded assertion that “lower courts have treated this as an open question,” the concurrence cited a single appeals court case that merely raised the issue in passing. The case was from 1981, the yearbefore Congress rewrote the law, and in doing so made clear that it allowed private lawsuits. “It is intended that citizens have a private cause of action to enforce their rights under Section 2,” the House report on the law stated.
None of this stopped Gorsuch and Thomas. Theirs was no idle observation — it was a bring-it-on invitation for future mischief-making, part of the broader conservative drive to close off access to the federal courts. The offer was eagerly taken up by Texas not many months later, when private plaintiffs sued to challenge the state’s new voting law.
[1] Ruth Marcus, on Biden’s judicial advisory commission:
{Republican] anxiety was evident as summer turned to fall. As the first Monday in October approached, a remarkable number of justices felt compelled to speak publicly in defense of the institution. Perhaps they were rattled by the Biden administration’s commission on the Supreme Court — even though that panel wasn’t intended to do much more than head off demands from the left for radical changes such as expanding the size of the court. Perhaps the polls got to the justices as well. In July 2020, the court’s approval rating stood at 58 percent in a Gallup poll, the highest in a decade; by the end of September 2021, that had dropped to 40 percent, the lowest since Gallup started testing the question in 2000.
In April 2021, Nathaniel Rakich of FiveThirtyEight noted that “Of the 293 Republicans who were serving in the Senate or House on Jan. 20, 2017—the day of Trump’s inauguration—a full 132 (45 percent) are no longer in Congress or have announced their retirement or resignation.” Under pressure from the former president, the party continues to radicalize, with firebrands like Boebert, Marjorie Taylor Greene (R-GA), Matt Gaetz (R-FL), and Gosar gaining influence.
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