A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including  famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of  America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?


  1. The Preamble of the Constitution has long set the goals our society wanted promoted — the ones that the majority wanted promoted,anyway.
    Now? I’d say it’s open season on all of us because the SCOTUS has ruled it’s okay for an American STASI to be created — just as the part of Germany that had one has pitched it!!

  2. People have been sounding the alarm about climate change for a long time. It reminds me of the Pharaoh’s Dream of the 7 fat cows and 7 lean cows. With all the warnings and pleadings for government to prepare for the coming times, why aren’t we ready?

    The other point I would like to make is that, as bad as the Texas law and the Court’s ruling are, the importance of the voting suppression rules become much more important.

    Interesting times.

  3. Why should anyone be surprised or shocked or even offended by this Republican-dominated SCOTUS? The majority are REPUBLICANS, appointed and confirmed by REPUBLICANS. This is what the Republican party has been for a very long time. Poppy Bush gave us the egregious Clarence Thomas and his looney wife. Poppy’s son gave us Alito and Roberts, with Alito being one of the most backward-thinking Justices in history… if it weren’t for Thomas. Then the orange hairball gave us the extremists Gorsuch and Kavanaugh.

    What else should we expect? All of these people are fascist ideologues who embrace fascism because it makes their pathetic beings feel powerful. Republicans have NO intention of governing. They have NO intention of actually following the Constitution, and they are making this crap up as they go.

    Shadow court, my left foot! These wretches are pure NAZI.

  4. And now it comes to Indiana, Liz Brown has indicated she is filing a Texas style abortion law.

  5. I want to remind everyone that Dianne Feinstein hugged Lindsey Graham and thanked him for the wonderful hearings put on for ACB. But, unfortunately, she slipped and then resigned from the committee.

    Texas is the one Red State that isn’t dependent on the federal government for income and an oil exporter. So, not surprisingly, it’s the launching pad for Koch’s secession plans.

    Biden is still walking around like a wounded duck from the Afghan withdrawal and got censored by the UK government (whatever that means). Our role on the international stage is all Ego at this point. I get newsletters from the Defense Lobby think tank’s and they are all pivoting toward China and Russia, and I have to laugh.

    I think Sheila is right to panic, but there is truly a break in reality from so many different facets of our kakistocracy. It’s tough to keep tabs on all the breakdowns of our hegemony both globally and nationally. The media is worried about the Taliban and ISIS-K when worrying about the oligarchs and their puppets in our own country.

    Also, now you can forget all about Russian interference once and for all. Although, I think Trump has received financial assistance from Russian oligarchs in laundering money. When I saw the elaborate trail of companies associated with his campaign spending recently, it’s clear he has been using laundering techniques for years to wash money.

    Lastly, I hope Sheila will revisit Todd Rokita’s campaign against China and the Confucius Institute at Valpo because he is forcing them to close down the center and is going after all the other center’s in the USA. Todd’s office sent me an OpEd to publish. I could forward it to Sheila if she’d like to see it. Unfortunately, I told them I couldn’t publish it because it was full of false information. Still, if he’d correct it and add Walmart to his list of companies to protest since they import 90% of their products from China, I’d reconsider publishing his letter.

  6. The full blame for this SCOTUS ruling goes to McConnell; the most severe anti-Constitutional action it has taken since Mitch McConnell was given full power over the United States Senate. He ignored his Oath of Office and was allowed to do so as he denied the U.S. Senate the right to hearings on President Obama’s federal court nominations at all levels which is required by the Constitution. Leaving gaping holes throughout our justice system, the most vital positions on SCOTUS, to be filled by Trump’s biased and narrow-minded appointments.

    Religion now rules this country; we have gone “Back To The Future”, this country began when people left their homelands, many to escape forced religions or religious persecution to form this nation. I remember the outcry during President John F. Kennedy’s campaign that “No Catholic will ever become president of the United States.” He tried to prove it was safe, that his religion would not rule this land; President Joe Biden has tried to do the same. McConnell and Trump have taken us back to the reason so many feared the Catholic religion; using their evangelical White Nationalist base to circumvent federal and state Constitutions and put religion in control. Those five members of SCOTUS have, like McConnell, ignored their Oath of Office before the highest court in the land.

  7. Todd; thank you for that reference to Confucious, it brought back to mind a quote from my cousin many years ago.

    “Confucious says to start a poultry farm one must have a cock and pullet.”

    An apt description of Republicans today and their chickens have come home to roost in SCOTUS.

  8. And, then there is the new McCarthyism, as those to whom the House Select Committee is sending subpoenas are being, literally, threatened by Kevin McC. Will he be visited by the Justice Dep’t, and taken into custody?
    Will Kavanaugh be confronted with 4,500 complaints?
    Will justice be done?
    Will McConnell be honored with statues around the country after he sheds his mortal coil?

  9. More boots are moving on the ground…from ProPublica (an excerpt) whipped up By Steve Bannon:

    “The stolen election myth inspired thousands of Trump supporters to take over the Republican Party at the local level, exerting more partisan influence on how elections are run.

    Suddenly, people who had never before showed interest in party politics started calling the local GOP headquarters or crowding into county conventions, eager to enlist as precinct officers. They showed up in states Trump won and in states he lost, in deep-red rural areas, in swing-voting suburbs and in populous cities.

    In Wisconsin, for instance, new GOP recruits are becoming poll workers. County clerks who run elections in the state are required to hire parties’ nominees. The parties once passed on suggesting names, but now hardline Republican county chairs are moving to use those powers.

    “We’re signing up election inspectors like crazy right now,” said Outagamie County party chair Matt Albert, using the state’s formal term for poll workers. Albert, who held a “Stop the Steal” rally during Wisconsin’s November recount, said Bannon’s podcast had played a role in the burst of enthusiasm.

    ProPublica contacted GOP leaders in 65 key counties, and 41 reported an unusual increase in signups since Bannon’s campaign began. At least 8,500 new Republican precinct officers (or equivalent lowest-level officials) joined those county parties. We also looked at equivalent Democratic posts and found no similar surge.

    “I’ve never seen anything like this, people are coming out of the woodwork,” said J.C. Martin, the GOP chairman in Polk County, Florida, who has added 50 new committee members since January. Martin had wanted congressional Republicans to overturn the election on Jan. 6, and he welcomed this wave of like-minded newcomers. “The most recent time we saw this type of thing was the tea party, and this is way beyond it.”

    Per usual, the “play nice” DEMs do nada….Folks, this is a war for our democracy…

    Full article: https://www.propublica.org/article/heeding-steve-bannons-call-election-deniers-organize-to-seize-control-of-the-gop-and-reshape-americas-elections

  10. The only way our government could effectively rebut the conservative SCOTUS is to pass a voting rights act which makes politicized gerrymandering illegal and to pass a bill guaranteeing a woman’s right to abortion. Will they? I don’t know. Would Sen. Collins and Sen.Murkowski side with democrats? How about Sen Manchin?

    Obviously Texas does not care if it creates a civil war between its citizens that goes beyond the verbal level. Now we will probably have vigilantes lynching pro-choice advocates. And like Indiana, they were dumb enough to allow people to buy a hand gun without training or licensure. I guess both states want to increase homicide and suicide levels. What really is disturbing is they have made no exceptions to their pro birth law.

    As we feminists so often say, I so wish the government would keep their hands off my UTERUS! Women in Texas should definitely go on strike!! Tell the boys that they will have to seek sexual gratification without women. Maybe more of us should become lesbians.(Ha!) Just kidding.

    There is a Chinese curse that states “May you live in interesting times.” Sometimes I feel like we have the Chinese curse.

  11. Clearly, the Texas Taliban has demonstrated that we can no longer afford bipartisan government and Biden has to rethink his priorities and abandon his long Senate experience and move towards a kind of Afghanistan-like alertness of who are friends and enemies.

    Mullah McConnell has been more diabolical than we have been giving him credit for. I hope that the women of Texas who have seen their Constitutional rights stripped away realize that Abbot was only a local warlord puppet reacting to his strings, not his mind.

    All of the red states are now drooling at their newfound power to enforce unconstitutional laws with local militia vigilantes.

  12. The Democrats from what I have read are now all energized over the Texas abortion law and various other tricks to suppress the vote or even more ominous control the counting of those votes.

    The Democrats for now have a slim majority in the House. It is the Senate where things are all blocked up by the filibuster. There are calls to eliminate the filibuster or modify it so legislation cannot be all tied up one suggestion is, you can filibuster but only if you stand up a talk no breaks.

    The Supreme Court has proven to be what the Progressives feared Right Wing Reactionaries. We had the Warren Court, the Burger Court, now we have the Trump Court.

  13. With all due respect to Sheila, I’m not sure she isn’t taking a contradictory position. She complains about the SCT making decisions via the shadow docket , before issues aren’t fully briefed, but then complains of the SCT approving the Texas scheme. But didn’t the US SCT refuse to use the shadow docket to block the Texas law on an emergency basis? I certainly don’t agree that the UJS SCT approved the Texas law. They’re not at that stage yet.

    The notion we should always be able to rush off to the highest court in the land, the US SCT, to get some type of immediate emergency-type action, before legal issues are even briefed…well our system isn’t designed that way. Granted there was a basis for the US SCT to take action to issue a stay regarding the Texas law, but other state and federal courts can do that. The order doesn’t have to come from the US SCT.

  14. This is great news about Roe v. Wade – for the Democrats that is. Can you imagine the funding possibilities? How much money that they will be able to raise off the back off of it? What a money-spinner. Imagine the appeals to women to donate to the Democrats who will promise to do something about it when they finally have power. It would be better for the Democrats not to stomp on this as fast as possible but to let it fester from now until next year’s midterms of course. They will be able to raise more money that way you see. Having the Supreme Court abandon their responsibility by not hearing an appeal about this would have been the icing on the cake for the DNC.

  15. Mr. Ogden; Sheila is well aware, as are her commenters, that the Supreme Court settled the Roe vs. Wade decision long ago. Where else should appeals to strike down oppositional laws which are founded on no knowledge of a women’s body and pregnancy gestation be taken? If giving private citizens Bounty Hunter powers, with the promise of a large monetary reward, based on a supposition regarding someone else’s pregnancy and the gestation period and taxi drivers is not against all logic, common sense, human rights as well as civil rights…what is? This is beyond the level of stupidity of horse paste and Clorox as protection against Covid-19. As President Biden’s press secretary Jen Psaki responded to that male reporter, YOU have never been in this condition.

  16. Welcome to Gillead.

    Until 2017, the nation of Chile had laws to prohibit abortion–to the extent that, if a woman left the country pregnant and returned un-pregnant, she could be prosecuted and imprisoned. Is that next in Texas? Because as a Patient Advocate for our local Planned Parenthood, I can tell you we have patients from all over the country, escaping draconian ”pro-life” religious persecution!

    I’m surprised Texas didn’t prohibit contraceptives, too. Maybe THAT is next?

  17. Thanks Peggy H. and Pam. You nailed it and kept it brief, too. Winners in both categories. Stand and bow. OK. Sit now. You must be tired.

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