Category Archives: Constitution

Everyone Else Has To Vote

Jennifer Rubin is one of the clearest-eyed columnists around, and as the MAGA movement has demonstrated both its staying power and its ability to mesmerize  and propagandize angry voters, her clarity is welcome.

In a recent column for the Washington Post, Rubin “told it like it is.”

Right-wing pundits and Republican apologists are quick to blame “elites” or “the left” for a failure to respect and recognize the legitimacy of a MAGA movement based in election denial, White Christian nationalism and hostility toward robust democratic elections. It’s a demand for acceptance that is eerily reminiscent of other periods in U.S. history (e.g., the 1850s, the 1920s, the 1950s), which can illuminate the depth of our national problem.

Rubin referenced the eerily similar situation from just before the Civil War. Quoting from Jon Meacham’s recent book on Lincoln, she reminded readers that the South “could hear nothing more — could absorb nothing more — once it was told that the rest of the nation had found its way of life morally wanting. It felt judged, and it hated it.”

Substitute “election denier” for “the South,” and you have a fair approximation of the current state of American politics. Now, one side believes its viewpoint is essential to maintaining its power and its conception of America. It insists its followers can be “seen” only if the rest of us agree with their delusions and conspiracies.

That, of course, is not the way democratic systems work. Of course, the MAGA folks, as we have seen, are more than willing to jettison democracy if that’s what it will take to protect their status as the only “real” Americans–a status that they perceive (correctly) is endangered.

If there is no possibility of principled compromise–after all, how do those of us who occupy a fact-based reality “compromise” with delusion?–what can the rest of America do? Rubin doesn’t pull punches:

Aggravated by declining economic prospects, overwhelmed by the opioid epidemic and utterly divorced from mainstream news sources, they unsurprisingly glob onto conspiracies, hold up former president Donald Trump as their champion and refuse to process any information that conflicts with the victimhood they embrace.

While there are certainly persuadable voters who drift between the parties, one cannot attribute Democrats’ losses in certain areas of the country to “poor messaging” or even a specific policy failure. None of that would make any difference. It’s fantasy to think there is a segment of White male working-class voters eager to vote Democratic if only Democrats had not passed the American Rescue Plan or avoided dealing with bias in policing.

Rubin quite properly scorns the notion that policy differences explain the MAGA movement. The die-hards of MAGA are neither motivated nor mollified by policy. That said, she  also recognizes that the appeal of conspiracies and various bigotries grows in situations of precarity and financial insecurity, which means that efforts to address those problems makes sense. As she notes,it pays political and economic dividends to “draw down the venom” in communities where people feel left behind.

She also recognizes that Democrats running in states with very different political cultures will necessarily run different sorts of campaigns.

The paragraph I found most insightful, however, was this one:

Everyone else has to vote. There is no substitute for high engagement, high turnout and an educated electorate. If 90 percent of the money spent on ads that viewers literally tune out were devoted to organizing on college campuses and other low-turnout environs, the results would be quite different for the pro-democracy, pro-pluralism forces.

Everyone else has to vote.

Before every election, we hear that “this election is the most important in our lifetimes.” This year, that warning rings true.

We can argue about causes of inflation, how to  understand and address crime, how best to combat climate change….and a million and one other truly important issues. But a few short days from now, the ballots we cast will decide questions that are massively more important and fundamental. Next week, Americans will vote to confirm or deny our most basic aspirations–adherence to democratic norms and the rule of law, and affirmation of the legal equality/autonomy of all citizens, irrespective of gender or sexual orientation.

Next week, our choice isn’t between Candidate A and Candidate B. Our choice is between the American Idea and White Christian Nationalism. We can hammer out our policy differences after we save democracy.

Rubin is right: Everyone who isn’t the product of MAGA madness–every American who occupies the messy, imperfect and maddening reality-based community–has to vote.

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Women And The Law

The final part of my “War on Women” argument is mercifully short.

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A Constitutional U-Turn

In addition to the First Amendment’s prohibition against legislating religious doctrine, for the past fifty years Americans have relied upon a constitutional doctrine known as substantive due process, often called the “right to privacy.” That doctrine has strengthened the conviction of most Americans that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

The right to privacy was explicitly recognized in a 1965 case titled Griswold v. Connecticut. The Court was considering the constitutionality of a Connecticut law prohibiting the use of birth control by married couples. (The law also prohibited doctors from prescribing or pharmacists from selling contraceptives.) William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The majority recognized that a right to personal autonomy was necessary to the enforcement of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment—hence the doctrinal title “substantive due process.” Wherever it resided–in a “penumbra” or the 14th Amendment–a majority of the Justices agreed on its presence and importance.

Procedural due process protects Americans’ right to a fair process—a fair trial or other governmental proceeding. Substantive due process distinguishes between decisions that government has the legitimate authority to make, and decisions which must be left to each individual. In the fifty years since Griswold, the recognition that the U.S. Constitution protects personal autonomy and respects the right of each individual to self-determination has powerfully influenced American culture. Much of the anger over the Supreme Court’s decision in Dobbs can be traced to shock over Justice Alito’s assault on what most Americans had come to consider a bedrock principle:

Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health are an example.) Otherwise, government must leave us alone. Secular and religiously tolerant Americans who had dismissed warnings about growing fundamentalist assaults on that principle, confident that their right to self-determination was secure, reacted to the conservative Christian overtones in Dobbs, justifying an invasion of that right, with predictable shock.

As the foregoing discussion has made clear, different religions—and different denominations within those religions– have very different beliefs about women and procreation, and what amounts to the Court’s elevation of a particular version of Christianity has engendered an enormous and negative reaction. Survey research has confirmed that a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. Large numbers of Americans see the overturning of Roe and cases like Hobby Lobby[ as part of an escalating war on women.

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On November 8th, the American people need to send an unmistakable message to the arrogant theocrats and paternalists on the Court. A massive vote for Democrats–BLUE NO MATTER WHO–will send that message, in three parts: it will be a repudiation of the Court’s current trajectory; a signal that the Court’s legitimacy has dangerously eroded; and it will convey a willingness to make significant changes to the Court’s composition and jurisdiction.

A failure to send that message will be seen as acquiescence to the Court’s retrograde direction, with very negative consequences for all Americans, not just women.

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Speaking Of Power…

The New Republic has a new podcast, titled “How to Save a Country” devoted to ideas about a “new political vision and a new economic vision for the United States.”

A recent introduction began “It’s that time of year, a chill is in the air. Halloween candies hit all the grocery store aisles, and perhaps scariest of all …the Supreme Court is back in session.”

As Michael Tomasky noted,

We could see the last vestiges of affirmative action overturned. We could see a decision that gives state legislatures the power to essentially overturn federal election results. And we might see a more definitive conclusion of the right of business owners to refuse to serve gay customers. You know, the wedding cake question.

The interviewee on this particular episode was Amy Kapczynski, who co-directs both Yale’s Global Health Justice Partnership and its Law and Political Economy Project. She also clerked for both Sandra Day O’Connor and Stephen Breyer–experience that prompted one of the first questions: what was it like to work at the Supreme Court?

Gosh, there’s lots to say about what it’s like at the Supreme Court. It’s the kind of building that when school kids come into it, they often ask whether it’s a church. It’s a very intimidating place. It’s a very intense place to work. It’s a very small and intimate place. I can think of no government agency that has anything like the amount of power that it has with so few people working for it, and it’s a place about which I would say there’s a lot of secrecy. So some of that has been drawn back a little bit recently as we started to see both the leaks of the Supreme Court and also, I think, with more public attention, people realizing how much power the court has and how a concerted majority that’s really not afraid of public reaction can use that power.

I think one of the things that I was fascinated by as a young person going to law school and then working at the Supreme Court, is how people in power think about the power that they hold. And clearly, I think one thing that we’re seeing about the Supreme Court now is that you have a slim majority that’s very, very conservative and that’s very eager to use the power that they have to advance a vision of America that doesn’t look a whole lot like America today. It’s part of the reason they talk so much about 1789.

Kapczynski says we should be prepared for a lot of bad 6–3 decisions (several of which the podcast participants discussed) and that progressives need to think carefully about what we can do and how we can react. She points out that the Supreme Court is not the only body that can interpret the Constitution, and that the view that all Constitutional interpretation must occur there is a relatively modern phenomenon.

There’s a long history that we can look back to where there have been fights about the court, where the court has overreached, and where there have been ways that the public and our political branches have responded that have curbed the court’s power.

And sometimes it happens because the amount of public outcry actually causes those individual people sitting there and reading their newspapers to think, “Well, gosh, maybe we are overstepping, and maybe we’re really going to face the loss of our legitimacy or changing of our composition if we don’t pull back.”

Given the breathtaking arrogance and intellectual dishonesty of Justice Alito and the equally arrogant indifference to ethics displayed by Thomas, I’m dubious that the worst actors on today’s Court will recognize  and dial back their outsized contributions to the Court’s diminished legitimacy…although one can hope.

Kapczynski shares more concrete suggestions for curtailing our rogue Court, and those suggestions bring us back to the issue of power–how it is exercised, and by whom. It also brings us back to the importance of civic education/literacy.

So there are lots of options. All of them require lots of power, right? You need really strong majorities and committed majorities in Washington, so not just the presidency but a stronger majority than we have in Congress and the Senate and so forth to really take those kinds of things forward. And you do need a party and a base that’s more educated about why this is important, that understands the structural power at stake and cares about that.

If those considerable hurdles can be surmounted, Congress can look into the pros and cons of adding justices, imposing term limits and/or restricting areas of jurisdiction.

If Republicans control Congress after the Midterms, of course, none of that will happen.

VOTE BLUE NO MATTER WHO.

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Power To The (Voting) People

Here in Marion County, Indiana, incumbent Prosecutor Ryan Mears has generated Republican criticism for making it clear he will deploy the resources of his office to target serious crime–and that his definition of serious crime doesn’t include smoking a joint or having an abortion. He sees his job as an important part of public safety efforts to protect citizens against crimes like rape, robbery and murder.

Mears is hardly the only prosecutor taking that position. Prosecutors have limited resources, and determining the most effective use of those resources in combatting crime is actually a critical part of the job description.

Right now, a battle taking place in Florida between Governor Ron DeSantis and Prosecutor Andrew Warren is illuminating what happens when an ambitious and autocratic governor pretends not to understand that responsibility.

When Florida’s Republican governor fired the Tampa area’s top prosecutor for defying the state’s transgender and abortion crackdown, Ron DeSantis made it clear that he believes his power as governor supersedes the power of voters.

But now that prosecutor, Andrew Warren, is suing to get his job back, and the twice-elected state attorney tells The Daily Beast this is more than a fight over his employment; it’s about whether a strongman governor can single-handedly toss a democratically elected local official out of office.

Politicians like DeSantis and (clumsier and closer to home, Todd Rokita) have tied themselves to the MAGA/ White Christian Nationalist crusade–since his election, DeSantis has moved to  “ban certain books in schools, halt transgender health care for young people, isolate and bully gay kids, and target transgender athletes in schools.”

Warren makes an important point: if DeSantis can overturn the will of the voters who chose him as prosecutor, what would prevent him from targeting elected school board members who choose to ignore his book bans and crackdowns on gay and transgender kids?

“There’s so much more at stake than my job. This is a fight to stop the erosion of our democracy. It’s to ensure our democracy has meaning, so we have elected officials and not a king, so no governor can steal the people’s vote and silence their voice. Regardless of what party you belong to, your vote matters,” Warren said.

This particular battle started shortly after the Supreme Court stripped women of abortion rights in June, when Warren and other elected prosecutors across the country sought to temper widespread fears about misogynistic crackdowns. Warren signed a joint statement vowing to not “criminalize reproductive health decisions.” DeSantis, seething over what he called a “woke” resistance, announced with much fanfare on Aug. 4 that he was suspending the Hillsborough County state attorney. The executive order accused Warren of “eroding the rule of law” and “encouraging lawlessness.” Warren sued two weeks later in federal court.

So far, the judge in the case has consistently ruled against DeSantis on preliminary matters. He issued an order rejecting the governor’s legal theory, which requires a finding that that public employees’ on-the-job statements aren’t protected by the First Amendment, and also requires a determination that an elected prosecutor is an “employee” of the governor who can be subjected to discipline by that governor/employer.

The judge has made a correct and important distinction between elected officials, and appointed agency employees. DeSantis has the legal authority to target the latter category, no matter how vindictively—as he did to the Health Department researcher who was pressured to resign when she wouldn’t fake COVID-19 data to make Florida look good.

He has no such power over officials who were voted into office.

The lawsuit in Florida and the criticisms being leveled against the numerous prosecutors who have taken positions similar to those taken by Warren and Mears should operate to focus more attention on down-ballot elections. We The People get to choose our local officials, and those officials aren’t beholden to state-wide officeholders–they are accountable to the law and to us.  It behooves us to investigate their positions, priorities and prior performance, and vote accordingly.

Here in Marion County, Indiana, we are fortunate enough to have an incumbent prosecutor who is forthright about where he stands, and candid about the ways in which he intends to deploy the limited resources of his office. For my part, I agree entirely with his priorities and approve of the way in which he has run the office. People who disagree should vote for his opponent. No matter who wins, however, that individual will be accountable to us, the voters–not to the governor and not to Indiana’s current (embarrassing) Attorney General.

They, too, are accountable to We The People.

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The Judicial Crisis

Those of us who are, or have been, lawyers have watched the litigation over Trump’s purloined documents with amazement bordering on mystification. Suddenly, the potential consequences of Trump’s appointment of rogue judges are too dire to ignore.

The crises within the federal judiciary aren’t all new. During my years in the academy, I was a subscriber and occasional participant of the Law and Courts listserv–a forum for professors of law and political science. Well before McConnell’s shocking departure from constitutional and democratic norms, or Trump’s nomination of only Federalist Society favorites, scholars had focused on the need to expand the Supreme Court–a need prompted by increased workloads leading to fewer decisions. 

Participants also raised concerns about the increasing politicization of the courts. As an article in Politico recently put it, the widely ridiculed–and clearly political– Cannon ruling

underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.

The lifetime appointments of federal judges were intended to shield jurists from political pressure, leaving them free to issue decisions based upon their reading of the law, rather than partisan passions. The Founders seemed not to worry about the possibility of politicized appointments.

As Politico noted,

the drafters of the Constitution assumed that there was little risk of politicized appointments for two reasons. First, they expected the supply of qualified judges to be very limited. Second, they viewed the Senate as a disinterested body, “standing above politics.” Of course, both assumptions quickly foundered with the rise of law schools and national political parties. And the federal judiciary attracted partisan labels as early as 1800. Judicial independence, in short, was compromised early and deeply by the failure of the framers’ guiding assumptions.

Commenters to that Law and Courts listserv also noted the effects of longer lifespans on the federal judiciary, and advocated term limits that would be long enough to shield judges from the immediacy of political repercussions (the preferred term was 18 years) to mitigate concerns over terms stretching into judicial dotage. 

Now, concerns about the state of the judiciary extend well beyond academic discussions.

It is in this context of pervasive skepticism about the quality of American courts that Cannon issued her order. In its details, it confirms and exacerbates skepticism about the idea of an apolitical bench. Even conservative commentators have flagged its sharp swerve from the normal treatment criminal suspects receive based on “irrelevant” considerations about Trump’s “reputation.” Concerns were stoked when Trump’s lawyers “went shopping” for a judge he’d appointed — rather than appear before the magistrate who’d issued the original warrant — and who’s received death threats for his pains from the former president’s supporters. And they flared further when Cannon telegraphed her intention to rule for the president who appointed her even before the Justice Department had filed any papers.

Cannon’s order, then, is troubling not just in isolation as a “deeply flawed” decision on its specific merits. It also should worry because it seems to affirm, and hence accentuate, a larger narrative of fracturing judicial independence.

Jamelle Bouie addressed the issue of a politicized judiciary in a recent New York Times essay. His recommendation echoed that of the scholars on the listserv: expand and reorganize the federal court system.

The practical reason to increase the number of courts and judges is that the country is much larger than it was in 1990, when Congress made its last expansion, adding 11 seats to the circuit court system and 61 seats to the district court system. This was modest compared with a change in 1978, when President Jimmy Carter signed the largest judiciary expansion in history, creating 150 new judgeships and expanding the entire federal bench by more than a third.

In the 32 years since 1990, the United States has grown from a population of roughly 250 million to a population of over 330 million. More people means more legal disputes, more legal disputes means more cases, more cases means more work. And the federal judiciary is swamped. Last year, the Judicial Conference of the United States, a nonpartisan policymaking body for the federal courts, recommended that Congress create 79 new judgeships across existing district and appeals courts.

Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.

I agree. But it won’t happen if Americans don’t vote Blue No Matter Who this November.

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