Category Archives: Public Policy and Governance

The Label Is Wrong

Several media outlets recently reported on a Gallup poll finding that forty-three percent of Americans think the current Supreme Court is “too conservative.” Excuse me, but that finding is an example of a fundamental misperception that infests current American debates, and keeps our political arguments unilluminating and unproductive.

The current Supreme Court is many things, but conservative is certainly not one of them. Indeed, some of the most trenchant criticisms of the entirely corrupt Court majority have come from jurists and scholars with unimpeachably conservative bona fides. For example, J. Michael Luttig–a conservative icon  and former judge who consistently issued very conservative opinions when he was on the bench– called the Court’s bestowal of immunity for “official acts” of the President “irreconcilable with America’s democracy, the Constitution, and the rule of law.” Legal scholars, including a number of conservatives, have argued that decisions rendered by the current majority break with centuries of understanding, lack textual support, and undermine accountability.

Several conservatives have warned that the Court is legitimizing a “kingship” rather than a presidency. 

The Court’s unprecedented use of the Shadow Docket–historically a mechanism reserved for matters requiring an urgent response–has drawn criticism from across the ideological spectrum. The Court’s majority has used the Docket to issue decisions that lack the sort of legal analysis that lower courts rely upon for guidance, and has issued those decisions without the benefit of briefing or argumentation, lending credibility to the impression that they are operating via prejudice rather than analysis.

In a string of unexplained decisions utterly inconsistent with precedent, the majority has eroded the independence of previously independent agencies and commissions. It has allowed Trump to withhold funds appropriated by Congress, despite the fact that the Constitution explicitly and exclusively grants funding decisions to the legislative branch. It has overturned the longstanding deference of the judicial branch to agency understandings of their own regulations, empowering judges to determine highly technical matters; the majority’s “religious liberty” decisions have significantly eroded the First Amendment’s separation of church and state in favor of a performative and illiberal Christianity, and–perhaps most shocking of all– it has allowed ICE to ignore the probable cause requirement of the Fourth Amendment.

The list goes on.

Words have meanings, or at least they should. A truly conservative Court follows–conserves–legal precedent unless faced with formidable evidence that the precedent is no longer consistent with modern realities. Stare decisis and respect for legal predictability have long been lodestars of the judiciary, including–indeed, especially–conservative members of that judiciary. Evidence of such respect is nowhere to be seen in the Roberts Court; for years, Clarence Thomas has signaled his desire to overturn decisions with which he personally disagrees, and Samuel Alito gave a metaphorical finger to both individual liberty and fifty years of precedent when he authored the Dobbs decision.

Conservatism has been defined as a philosophy of preservation and prudence; conservatives value continuity, social stability, and gradual evolution rather than radical change. Conservatives prioritize respect for institutions, the rule of law and moral and cultural traditions. In contrast, reactionary far right ideologies are fixated on a desire to “reclaim” a mythic past. Reactionaries reject checks and balances; they embrace nativism and define belonging in racial and religious terms rather than civic ones, and they detest the pluralism that defines today’s America.

 

Where conservatism sees order as compatible with liberty, reactionary and populist far-right movements define order as the suppression of difference.

 

The problem with labeling our reactionary Court as conservative is that such a label obscures reality. It’s akin to the misuse of other labels like Left-wing and socialism, but it’s arguably more dangerous, because it makes a very real threat–an ahistorical judicial deviation from the rule of law in favor of a very unAmerican authoritarianism– seem like a normal part of America’s ever-shifting political environment. We’ve always had courts and political parties that are properly understood to be more conservative or more liberal, but by mis-labeling this radical Supreme Court as “conservative,” we minimize the extent to which it has deviated from the political and constitutional norms to which both liberal and genuinely conservative courts have adhered.

 

If this Court was truly conservative, America wouldn’t be in the midst of an authoritarian coup.

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it’s The Structure, Stupid!

A reader recently sent me a link to an article from Governing with a provocative title suggesting that the current crisis with democracy should be blamed on the states. The article pointed to a variety of problems that this blog and many others have frequently addressed, including the Electoral College, gerrymandering and vote suppression, and the structure of the Senate.

Despite the article’s title, the problems identified in the article can’t fairly be attributed to the states, although some of them (gerrymandering and vote suppression, certainly) are activities conducted by the states. The very real problems the article enumerates–and a couple it doesn’t–are more properly designated as structural. 

One of the problems with a population that is largely civically-ignorant is the widespread belief that we just need to elect the “right” people who support the “right” policies, and longstanding issues will be resolved. Very few Americans recognize the structural roots of our dysfunctions, and consequently, there are few, if any, efforts to address them.

The linked article identifies several of these structural impediments to a genuinely democratic system–defined as a system truly reflecting the will of the voting populace. I’m well aware that there are a number of scholars and pundits who are unenthusiastic, to say the least, about such a system; they remind us that the Founders were leery of “the people” and created impediments to what they characterized as mass prejudices and popular passions. (Indeed, the Bill of Rights is correctly identified as a counter-majoritarian document.) Most Americans today, however, give at least lip service to the notion that a democratic system, in which elected officials act in ways that reflect the expressed will of the majority, is the ideal.

We don’t currently have such a system, and as the linked article reminds us, the constitutional prerogatives of the states in our federalist system are largely to blame.

Consider all the ways states serve to frustrate the will of the people. First, the Electoral College, which votes state by state, has already installed five presidents whom the voters had rejected nationwide. The many additional near misses make frequent future recurrences a statistical certainty.

The U.S. Senate is even more counter-majoritarian. As of 2023, a majority of the U.S. population is clustered in states that together get only 18 of the 100 senators. The minority get the other 82.

We can blame the Founders for the Electoral College, but the clustering of the population is a more recent demographic reality–and even more damaging. That said, even among the Founders there were those who failed to understand why their “states’ rights” colleagues insisted on the equality of states, which were, after all, artificial creations, rather than the equality of the people who lived in them. As the article reminds us, Federalists like James Madison were bitterly opposed to what they saw as a grossly undemocratic Senate. “Ultimately, however, they accepted the proffered compromise (equally populated House districts, plus states as Senate districts), but only as an unavoidable concession to get the required nine state ratifications.”

One result of this empowerment of states rather than people has been a gradual shift of voting power to rural inhabitants at the expense of urban Americans. (One study found that a rural vote counts one and a third compared to a vote cast by a city dweller.)

As the article reminds us, states have used their prerogatives to suppress votes and–in states that allow initiatives–to overrule the results of popular votes. (In Indiana, which lacks a referendum or initiative, no rational observer would suggest that majority members of our legislature even try to reflect the will of the people.)

Making matters worse, in the U.S., changing structural defects is incredibly difficult.  That’s why the effort to eliminate the Electoral College is through an interstate compact rather than a Constitutional amendment. As the article reminds us, the U.S. Constitution has been described as the hardest in the world to amend.

It requires a two-thirds vote in both chambers of Congress, followed by ratification by three-quarters of the state legislatures (or a constitutional convention process that has never been used).

Winning a two-thirds vote in the already counter-majoritarian Senate is hard enough, but ratification by the states can be harder still. Only recently, states that represented just 22 percent of the U.S. population were able to block the Equal Rights Amendment, against the wishes of states representing the other 78 percent.

If and when we emerge from our current descent into fascism and autocracy, we need to address the structural issues that have facilitated that descent–including a thorough revamping of the Supreme Court.

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Feeling No Shame

I keep thinking about the question that led to the downfall of McCarthy and McCarthyism–at long last, sir, have you no sense of decency?

I doubt that Donald Trump could spell decency, much less define it, but I think there’s another, related question we might pose–although we know the answer: at long last, sir, have you no sense of shame?

I recently looked into the concept of shame and its social utility. It turns out that the ability to feel shame is an essential element of what psychologists and psychiatrists call “pro-social behavior.” It prevents people from damaging their social relationships and reputations, and it warns one of social ostracism or disapproval. Feelings of shame motivate individuals to conform to group norms and expectations, and that helps members of a society function cooperatively.

Although shame can also be toxic, in its healthy form it serves as a natural mechanism for self-control and social regulation, and promotes a shared sense of values and expectations for behavior.  

As we learn daily, Donald Trump and his cast of incompetent clowns and sycophants are incapable of feeling shame or even of experiencing its dimmer cousin, embarrassment. In the wake of one of the most recent exhibitions of Trump’s detachment from reality, Lincoln Square ran an article bemoaning the fact that Trump isn’t simply embarrassing himself, he’s embarrassing America.

The author of that article, Kristoffer Ealy, wrote,

Every time I see a headline or a YouTube video that says, “Trump embarrasses himself by…” it irks me a little. Not because Trump doesn’t make a fool of himself — he always does — but because is it even possible for him to get embarrassed? Embarrassment requires self-awareness. It requires an understanding of social standards, the recognition that you’ve fallen short of them, and the capacity to cringe at yourself.

Trump doesn’t express any of these traits. He barrels through life like a man who believes the world is his open mic, and the crowd is obligated to applaud no matter how stale the jokes are. Embarrassment implies an internal governor that makes you stop and think, “Oh, maybe I shouldn’t have said that.” Trump is missing that chip. He is an indictment on the United States of America, and not just as a president but as a mirror of the worst parts of us — anti-intellectualism, cruelty as entertainment, and the delusion that bluster equals brilliance.

Ealy wasn’t even writing about the latest embarrassment–Trump’s rambling and incredibly inappropriate speech to an assembly of American military leaders. He was reacting to the equally senile and unselfaware word-salad delivered to representatives at the United Nations, which he characterized as “bad improv with nuclear weapons.”

The first gem was his declaration that other nations are going to hell. That’s not analysis; that’s Shao Kahn from Mortal Kombat mixed with Jimmy Swaggart. If the goal was to sound like a dictator moonlighting as a televangelist, mission accomplished. He said it with the same flourish that Swaggart used to beg for donations, except instead of promising salvation he was predicting damnation. Imagine sitting in that room as a world leader and hearing the U.S. president channel both an arcade boss fight and a disgraced preacher. That’s not foreign policy—it’s fan fiction written by a crank.

Then came his insistence that climate change is a hoax. This is where roasting almost feels too easy, because it’s not just dumb — it’s dangerous. Trump is proof of how far the Republican Party has fallen. I would never call George W. Bush a champion for climate action, but even Bush had the baseline sense to acknowledge that climate change exists. 

That embarrassing performance has been eclipsed by the more recent–and more shameful–display to America’s military leadership. (The overall reaction to both Trump and Hegseth was summed up in an Atlantic headline: “Hundreds of Generals Try to Keep a Straight Face.”)

Trump’s obvious inability to understand when he is making a fool of himself, his utter imperviousness to feelings of shame or embarrassment, are indicators–according to the psychiatric literature–of psychological conditions like narcissism and psychopathy. An inability to feel shame also accompanies a lack of empathy and a lack of self-awareness.

That lack of self-awareness must also be a characteristic of Trump voters, who evidently view his ongoing clown show and decline with equanimity, and seem perfectly okay with his demonstrable inability to govern, not to mention his destruction of America’s global status…

They’re shameful.

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It’s All Out In The Open Now

We’ve come a long way, baby, from the days when our American bigots used to chafe at the “political correctness” that kept them from openly expressing their disdain for those despised “others.” As I have previously pointed out, the most consistent “through line” of America’s current, terrible administration has been its open assault on the civility that once kept people from broadcasting their hatreds; it has consistently conveyed its permission–indeed, encouragement–to voice them.

The Trump administration and Red state MAGA culture warriors enthusiastically attack anything that smacks of efforts to level the civic playing field–going after any program that hints of acceptance of diversity. At the federal level, Trump has fired talented and competent people of color and replaced them with wildly incompetent clowns whose most obvious (and often only) qualification for the job is White skin. Closer to home, our embarrassing and unethical Attorney General is harassing teachers and nonprofit organizations that display any concern for fair play or inclusion (one of the unfortunate teachers who made it onto Rokita’s threatening list of teachers he deems too liberal to be in a classroom is deemed guilty of being “unAmerican” because she included a rainbow flag in her room…).

Recently, media reports that the Trump administration has fired FBI agents who had the temerity to kneel in support of racial justice protests

WASHINGTON (AP) — The FBI has fired agents who were photographed kneeling during a racial justice protest in Washington that followed the 2020 death of George Floyd at the hands of Minneapolis police officers, three people familiar with the matter said Friday.

The bureau last spring had reassigned the agents but has since fired them, said the people, who insisted on anonymity to discuss personnel matters with The Associated Press.

The number of FBI employees terminated was not immediately clear, but two people said it was roughly 20…

The FBI Agents Association confirmed in a statement late Friday that more than a dozen agents had been fired, including military veterans with additional statutory protections, and condemned the move as unlawful. It called on Congress to investigate and said the firings were another indication of FBI Director Kash Patel’s disregard for the legal rights of bureau employees.

These firings follow others that targeted agents who investigated the January 6th insurrection, or who looked into Trump’s illegal retention of classified documents. Lawsuits stemming from those actions, which were patently illegal, allege that those dismissals are part of an ongoing effort to remove any FBI officers who investigated Trump or his cronies.

There is, rather clearly, also an effort to rid the FBI of officers who display support for racial justice.

In the short time Trump has been in office, he has gutted the Justice Department and turned the DOJ and FBI into compliant tools of his corrupt and lawless administration. Lawmakers and government lawyers have turned a blind eye to Trump’s multiple grifts, allowing him to run the administration like a Mafia boss, and rake in billions of dollars in what are outright bribes. Investigations of Trump allies have been dismissed, while efforts to take vengeance against those who have incurred Trump’s anger have ramped up, leading to meritless indictments (Comey) and invasive and publicized searches (Bolton).

Needless to say, these are the tactics of fascists and autocrats, not the proper activities of an American administration.

And that brings me back to what constitutes the underlying strength of this horrifying, unAmerican cabal: racism (with a side of misogyny). I cannot account for the corruption of the six “Conservative” justices on the Supreme Court, but it has become quite obvious that the Republicans in Congress are completely in thrall to the GOP’s MAGA base–the White supremacists who continue to support Trump because he’s making bigotry acceptable again.

Are groceries more expensive? Is health insurance becoming unaffordable again? Has America’s position and power in the world declined precipitously? Are masked thugs snatching people off the streets? Is public health declining? Is your city struggling due to the federal cutoff of previously authorized funds? Are free speech and the rule of law under attack? Has persistent incompetence and dysfunction caused a government shutdown?

None of that matters to MAGA folks so long as Trump gives them permission to express contempt for those detested “others.”

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Civil And Human Rights In Indiana

I recently participated in a Zoom Consortium convened by the Hammond Human Relations Commission. I was a member of a panel that discussed the current state of of civil liberties and human rights in our state.

Panel members were asked to collectively address two questions; a third “ask” was specific to our particular backgrounds.

The first question was “What legislative measures by this administration have caused greatest harm or generated positive outcomes pertaining to civil & human rights.” I responded that, in my opinion, virtually everything done by this administration has been harmful. (I added that the damage couldn’t have been done without the cowardly acquiescence of GOP legislators.) The Trump administration has declared war on civil rights, civil liberties and the Constitution.

The public is just beginning to recognize the multiple harms done by the awful “Big Beautiful Bill,” and Trump’s multiple ridiculous and unconstitutional Executive Orders, but the worst–again, in my humble opinion–has been the unrelenting assaults on “wokeness” and Diversity, Equity and Inclusion. That federal assault has emboldened state-level culture warriors like Todd Rokita to pretend that good-faith efforts to level the civic playing field are really “reverse discrimination” against straight White men– a patently false excuse for the state’s vendetta against equal rights for women and minorities.

We were next asked if we had observed biases in the way information is disseminated in Indiana. My answer was really a repetition of observations I’ve shared here many times–about the fragmentation of today’s information environment, in which citizens aren’t all getting the same news or occupying the same realities, an environment which encourages people to choose “news” that confirms their biases—if they bother to consume any news at all.

I was then asked to expand on a paper I’d written about the effects of low civic literacy on democratic accountability, and to suggest solutions. (Ah, if only I had solutions…)

 As I explained, scholars attribute the erosion of American democracy to three interrelated causes: ignorance of politics and governance; the growth of inequality— including civic inequality and informational asymmetries—and a resurgent tribalism (racism and White Nationalism, sexism, homophobia, religious bigotry, the urban/rural divide…). Civic ignorance complicates the interactions between citizens and their government, and it exacerbates inequality. Citizens who understand how the political system works are advantaged in a number of ways over those who don’t, including their ability to recognize when elected officials are violating their oath to uphold the constitution.

Americans’ widespread ignorance of the basics of our Constitution and legal system has greatly facilitated the growth of disinformation and propaganda. It has allowed the current administration to obscure the fact that the majority of Trump’s numerous Executive Orders are at odds with the Constitution.

The most obvious was his attack on birthright citizenship, which is explicitly set out in the 14th Amendment. Eliminating birthright citizenship would require a Constitutional amendment—it cannot be done in a petulant Executive Order.

Citizens who’ve encountered the 14th Amendment would know that.

There are many other examples. If citizens knew that the Constitution vests control of spending in Congress—not the executive branch—they would recognize that Trump’s Orders withholding funding formerly authorized by Congress violates the Constitutional Separation of Powers. They would recognize that his “Muslim ban” was a flagrant violation of the First Amendment’s religion clauses. They would understand that his various efforts to root out Diversity, Equity and Inclusion programs not only violate the Free Speech provisions of the First Amendment but are also unconstitutionally vague–and why that vagueness matters.

Long term, the solution is to require a much more robust civic education curriculum in the nation’s schools—a curriculum that doesn’t simply educate students about the Constitution and Bill of Rights but also teaches accurate and inclusive history. (I went all through high school and college and never heard about the Trail of Tears, or the Tulsa massacre, for example.) But efforts to strengthen civics education come up against the far Right’s determination to destroy public education—to use vouchers to send public money to overwhelmingly religious private schools, very few of which offer civics or accurate, in-depth history instruction. Worse, attending such schools operates to reinforce tribal identities rather than inculcating allegiance to an overarching American constitutional philosophy. The effort to replace America’s public schools with religious “academies” was set out in Project 2025—and this administration is clearly following the prescriptions of that document.

Reinvigorating our public schools and requiring appropriate civic education is really the most effective solution to what ails us. If there are other solutions, I haven’t come across them.

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