Real Judges Judge The Supreme Court

Those of us who follow the courts are seeing something unusual. District and appellate federal court judges are criticising a Supreme Court that has lost its constitutional moorings. They are mostly–but not always– expressing those criticisms in civil and restrained language, but the fact that they are publicly criticising at all is really unprecedented. 

Much of the criticism has focused on the Court’s use of its Shadow Docket to empower the Trump administration without bothering to provide legal analyses explaining why the Court is ignoring many of its own long-time precedents. In a recent New York Times article, federal Judges warned of a ‘Judicial crisis’  they attributed to the Supreme Court’s string of opaque Emergency Orders. According to the report, “dozens” of judges shared “concerns about risks to the courts’ legitimacy” as a result of these orders. As the Times noted,

The striking and highly unusual critique of the nation’s highest court from lower court judges reveals the degree to which litigation over Mr. Trump’s agenda has created strains in the federal judicial system.

Other critiques have centered upon the Court’s disregard for what had long been considered binding precedent. I have previously shared widespread concerns sparked by the Dobbs decision–a deeply dishonest analysis that not only overruled the fifty-year precedent established in Roe v. Wade, but called into question the judicial doctrine of Substantive Due Process–a doctrine that restrains government intrusion into citizens’ individual liberties. 

Dobbs was only one example of this Court’s willingness to disregard the foundational separation of church and state, a process that a Hawaiian Judge recently criticised in a scathing opinion. (You really need to read his entire, eloquent screed.)

The Roberts Court casually dismisses the lessons of American and world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. Bad things happen unless government and religion are completely separated. The Court ditches neutrality and boosts accommodation over the wall. It flirts with the true harms the framers foresaw – coercion, exclusion, and civil strife. It invites state involvement with religion. And it exposes minority faiths and nonbelievers to majoritarian impulses. A snap of a few fingers and accommodation became a constitutional imperative. “[T]he Court leads us to a place where separation of church and state becomes a constitutional violation.” Carson v. Makin, 596 U.S. 767, 810 (2022) (Sotomayor, J., dissenting). Under the Court’s redesign, the Free Exercise Clause backspaced the Constitution’s first words.

The Court’s makeover happened with little mention of the Establishment Clause or Everson. Plus, the Court benched its go-to interpretive method. Suddenly, payments from the public treasury flow to religious institutions to fund religious exercise. The First Amendment had told Americans that public resources can’t support religious activity. For centuries. Yet “[w]hat a difference five years makes” to a hurried Court. 

In contrast to our rogue Supreme Court, the lower courts have overwhelmingly upheld traditional constitutional principles. (An excellent example is this opinion, rendered by a Massachusetts District Court in a lawsuit brought by the AAUP, Harvard and others.) At least one organization that tracks these lawsuits has found that the administration has lost 92% of lower court suits.

Interestingly, an analysis done by a researcher for the libertarian Niskanen Center found that during Trump’s first term, Republican-appointed judges had ruled for him more frequently than their more liberal counterparts, but that this time, those ideological preferences have disappeared. Not only have a huge number of nationwide injunctions against Trump’s unconstitutional efforts been put in place by the lower courts, but the ideological divide has disappeared.   Republican judges–including those appointed by Trump– are ruling against the administration at the same rate as more liberal judges. 

Niskanen’s researcher found that lower courts imposed injunctions in some 90% of the cases–and that legal precedents had clearly required that result. Nevertheless, the Supreme Court has ruled for the administration almost without exception. As the researcher concluded, 

It’s hard to draw any conclusion other than the Supreme Court is doing whatever it can without going too far to advance the broader efforts, especially when it comes to dismantling the existing constitutional order. It’s really quite striking…theSupreme Court has been extremely, extremely, I would say, engaged in helping the administration out in any place it can. And it’s created, there was this article recently just talking about the Civil War within the judiciary. It’s created a lot of tension between the lower course and the Supreme Court as a result because their rulings are basically getting nullified in a way that they had not experienced in the past.

Lower court judges have raised the alarm. It’s past time to address the obvious corruption of the Supreme Court.

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Remember The Golden Mean?

Remember the golden mean?

Aristotle believed that virtue occupies a middle ground between deficiency and excess. He called that middle ground “the golden mean,” and it was a key concept in his philosophy. Courage, for example, can be described as a mean between cowardice (a deficiency of courage) and recklessness (an excess).  Confidence lies between self-doubt and arrogance. Etc.

Inherent in the notion of a golden mean is the recognition that even good things can be taken too far.  The absence of a good quality is a problem we usually recognize, but (despite the adage) we less often understand that you can have too much of a good thing.

I recently came across an article from the Yale Daily News that reminded me of the importance of that golden mean. (I have no idea how I came to read the Yale Daily News….). The argument raised was hardly new; numerous scholars and historians–not to mention political pundits–have faulted America’s culture for an excess of individualism. Indeed, there is an entire philosophy, called communitarianism, built upon the premise that a good society is one in which citizens are “embedded” in the values and norms of their communities, and that the American emphasis on individual rights actually deprives us of the comforts and connections that make for a fulfilled life.

My own reading of communitarian philosophy is that it lies at the “deficiency” end of the spectrum–that the sort of society many of its proponents extol would smother creativity and penalize difference. Protecting individual rights against majority passions was, after all, one of the Founders’ most important and praiseworthy goals.

That said, the author of the linked article and many others who would not choose the degree of “embeddedness” that the communitarians appear to advocate argue that we have gone too far in the direction of excess.

As a matter of political philosophy, we, like many other countries, protect individual rights to protect the people from government overreach and maintain the mixed regime that our exceptionalism presupposes. But our politics and practices go further. They are built on the individual not just as a bearer of rights, but as the sole fundamental unit of society; in this vein, policy ideas are constantly evaluated on the basis of individuality. How does policy X affect an individual’s freedom to express their religion? How does policy Y burden an individual taxpayer?

This individualist mindset, built into the core structure of U.S. governance, is now inseparable from the American identity. I propose that our wholehearted devotion to the individualist perspective goes too far.

As the author points out, governments in much of the rest of the world have come to realize that serving the common good requires a combination of individualism and commitment to community welfare.

In America, we seem to lack the ability to prioritize the common good over individual rights, even when doing so would clearly benefit both individuals and the community. The author provides examples: the U.S. is the only Western democracy (assuming we still are a democracy) that declines to provide its citizens with universal health care. We refuse to prevent the leading cause of death for children and teens, thanks to our devotion to an individual right to bear arms. As he writes,

In America, community safety is understood — like everything else — through this same individualistic filter; the community is nothing more than a loose set of individuals. Therefore, community safety is as simple as putting weapons in the hands of each American so they can protect themselves. The American community as an end in itself is an empty concept.

This is probably not an optimum time to have this discussion–in the U.S. right now, the individual rights that do lie at the heart of the golden mean–free speech, separation of church and state, the right to due process and other protections of the rule of law– are under unremitting attack, an attack mounted primarily by a Christian Nationalist cult, and aided and abetted by a rogue Supreme Court. But it’s worth wondering whether people who were a bit more “embedded” in a system that looked out for their collective welfare–that guaranteed them access to health care, outlawed assault weapons, and provided a more robust social safety net–would be less likely to express their resentments by joining racist cults.

Devotion to the common good is entirely compatible with protection of individual rights. We just need to find the golden mean…

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The Monsters In The Closet

There’s a difference between real monsters and imaginary ones. A recent essay in Lincoln Square made that point–and the further, not-so-obvious point that expending our energies fighting fictitious ones may be less unproductive than we think.

The essay began with the author explaining that he’d gotten a little girl to sleep by pretending to overpower the monsters that–in her imagination–populated her closet. As he wrote, politics works similarly. The monsters may not be real, but they’ll control the process until someone confronts them.

Every election cycle has its own bedtime story. This last one, the 2024 showdown between Donald Trump and Kamala Harris, was no different. It was a close race, and Trump won it on the margins — those tight, swingy counties where a few thousand votes make democracy feel like a coin toss.

And once again, MAGA’s favorite bedtime story was about the monster in the closet. This time, it wasn’t immigrants or caravans or Critical Race Theory — it was transgender Americans.

Anti-transgender political ads flooded the airwaves, built on the same fear-based architecture Republicans have been refining since Nixon. Trump’s campaign made them a centerpiece, hammering the claim that trans athletes were destroying women’s sports and sneaking into bathrooms to terrorize little girls.

The Democrats didn’t waste much time and effort on pushing back, because the party’s polling suggested that relatively few Americans were swayed by these attacks. But as the author noted, Trump didn’t need very many. He didn’t even need 51%. He needed just enough voters to enable him to flip three counties.

As the author wrote, “That’s the Southern Strategy 2.0: Rebrand hate as “common sense,” then sell it as protection.”

In our digital age, lies can become immortal. As some wag has put it, a lie will go halfway around the world while truth is still putting on its pants. In the Wild West that is our current information environment, truth is increasingly irrelevant; repetition is what matters. In the 2024 election, those millions of dollars in targeted anti-trans messaging weren’t intended to move a majority — “just enough voters in just the right ZIP codes.”

The essay puts this strategy in historical context, finding its roots in Nixon’s Southern Strategy. That strategy has now evolved. As the author put it, the dog whistles have become baked into our reflexes. He quoted the strategy’s “prime mover,” Lee Atwater:

 “You start out in 1954 by saying n****, n*****, n*****,”* he said. “By 1968, you can’t say n**** — that hurts you. It backfires. So you start saying stuff like ‘forced busing,’ ‘states’ rights,’ and all that stuff, and you’re getting so abstract now that you’re talking about cutting taxes, and all these things you’re talking about are totally economic things, and the byproduct of them is that Blacks get hurt worse than whites.”*

That wasn’t a slip. It was a strategy. The racism didn’t disappear; it just learned better grammar.

If America’s current political polarization proves anything, it reminds us of the human tribal reflex to divide the world into us and them. Political strategists know that in today’s environment, the use of certain words will trigger predictable responses, and those responses aren’t reasoned — they’re conditioned. “Once fear bonds a group together, logic doesn’t even get a seat at the table.”

The essay argues that Democrats haven’t figured out how to respond to that reality, haven’t recognized that they need to confront political fears, no matter how ridiculous or imaginary those fears may seem, before they metastasize. The monster in the closet doesn’t disappear when you ignore him.

I find that argument persuasive.

What the essay doesn’t tell us, however, is just how the Democrats–and others who see the strategic use of “Othering” for what it is–are supposed to defeat it. In our current information environment, those most likely to be convinced that the monsters are real typically get their “news” from sources that confirm the existence of the monsters in the closet and the threat they pose. In order to evaluate the validity of a proposition, citizens need to hear contending perspectives–and we inhabit a world where millions of people have purposely insulated themselves against evidence that is contrary to their preferred beliefs.

There will always be some percentage of voters who feel the need for someone or something to blame for life’s disappointments, and those voters are perfect targets for the political strategists trying to convince them of the existential threat posed by the monsters in the closet.

I don’t know how we counter that, but we really need to figure it out.

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Trashing The First Amendment

Ten months into the Trump administration, the outlines of America’s cold civil war have become too stark to miss. MAGA is determined to remake the United States into a nation where White Christian Nationalists are legally privileged and in control. And they’re making progress.

The evidence is overwhelming. Masked ICE agents focus on people of color. Trump reportedly wants to “revamp” immigration rules in order to make it easier for Whites and harder for others to enter the country. From day one, the administration has pursued an all-out war on “DEI”–insisting that any effort to level the playing field for previously marginalized folks is really anti-White discrimination. Aided and abetted by a thoroughly corrupted Supreme Court majority, the hits have kept coming: universities prevented from continuing programs even slightly resembling affirmative action, the continued gutting of the Voting Rights Act…

And as we’ve recently seen, the racism motivating MAGA isn’t diminishing; it infuses the GOP’s young activists.

I have previously written about the faux-Christianity that motivates much of this. I particularly recommend Tim Alberta’s book, “The Kingdom, The Power and the Glory.” Alberta is a genuine Christian Evangelical, and his critique is informed by his own deep religiosity. More recently, David French–another committed Evangelical– has described what is happening in thousands of churches as a religious “revolution”–not to be confused with a true revival. In his telling, America is close to a religious revolution, and the difference between that revolution and a true religious revival is immensely important for both church and state.

Decades of scholarship, very much including scholarship by religious organizations, have attributed America’s religiosity–far greater than in other Western Democratic countries–to the fact that the First Amendment requires the separation of church and state. That understanding fails to persuade the MAGA folks who’ve turned religion into a political identity.

The Christian Nationalists who dominate Red state governments reject the First Amendment’s Establishment Clause. They intend to indoctrinate the nation’s schoolchildren, and they aren’t satisfied with mandates to post the Ten Commandments in classrooms. In Texas, they’ve introduced a “revised” and bible-infused English curriculum.

A new state-sponsored English curriculum infused with lessons about the Bible and Christianity could reach tens of thousands of Texas schoolchildren this year.

More than 300 of the state’s roughly 1,200 districts signed up to use the English language arts lessons, according to data obtained by The New York Times through a public records request. Many are rural, and relatively small.

The curriculum was created as several states, including Oklahoma and Louisiana, fought to bring prayer or religious texts like the Ten Commandments into public school classrooms, blurring the line between church and state.

According to the analysis done by the New York Times, the Texas curriculum features content on Christianity, the bible and the life of Jesus. Lessons include the Biblical story of his birth in a Bethlehem manger, New Testament accounts of the angel who described him as the Messiah, and even stories about the miracles he was purported to perform.

Fifth graders examine a psalm in a poetry unit. First-grade students discuss the parable of the prodigal son alongside stories like “The Boy Who Cried Wolf.” Kindergarten children learn in depth about the Book of Genesis in a lesson on art exploration that notes that “many artists have found inspiration for creating art from the words in creation stories in religious books.”

The Times analysis found that Christianity was heavily favored in the lessons. In the materials used in the second grade, for example, “Christianity, the Bible and Jesus are referenced about 110 times. By contrast, Islam, Muslims, the Quran and the Prophet Muhammad are mentioned roughly 31 times in lessons spanning from kindergarten to fifth grade.”

The Times article has much more detail, and it is worth clicking through and reading. The curricular changes were summed up in a quote by David R. Brockman, a Christian theologian and religious studies scholar at Rice University. After he reviewed all of the Texas materials, Brockman concluded that the lessons amounted to Bible study in a public school curriculum, and he worried that the state’s adaptation of its curriculum would send an implicit message to children “that Christianity is the only important religion.”

Well, duh! Of course that’s the message, and it’s intended. In MAGA’s America–a country distant from the one occupied by the rest of us–the only real Americans are lily-White and “Christian.” The rest of us–including genuine Christians–are intruders.

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I Told You So

Who really hates America?

In the run-up to No Kings Day, Republican leaders hysterically described participants as terrorists–as people who “hate America.” Those charges were never particularly effective; the first No Kings protest had brought out a cross-section of citizens who very clearly loved the America of the Constitution and Bill of Rights, and who were prepared to defend it against the real “enemy within.” Grandmothers and veterans joined young and middle-aged people in an affirmance of genuine patriotism.

If there was any confusion about who loves and who hates the America envisioned by the Founders, it came just a couple of days before the second No Kings Day, in an expose from Politico.

Here’s the lede:

Leaders of Young Republican groups throughout the country worried what would happen if their Telegram chat ever got leaked, but they kept typing anyway.

They referred to Black people as monkeys and “the watermelon people” and mused about putting their political opponents in gas chambers. They talked about raping their enemies and driving them to suicide and lauded Republicans who they believed support slavery.

Politico obtained 2,900 pages of Telegram chats–representing 28,000 messages– reflecting conversations among the leaders of national Young Republican groups. The chats  spanned more than seven months, and included Young Republicans from New York, Kansas, Arizona and Vermont. As the report summed up the discovery, the contents offered “an unfiltered look at how a new generation of GOP activists talk when they think no one is listening.”

And the way they talk is both horrifying and profoundly unAmerican.

Together, the messages reveal a culture where racist, antisemitic and violent rhetoric circulate freely — and where the Trump-era loosening of political norms has made such talk feel less taboo among those positioning themselves as the party’s next leaders…

The group chat members spoke freely about the pressure to cow to Trump to avoid being called a RINO, the love of Nazis within their party’s right wing and the president’s alleged work to suppress documents related to wealthy financier Jeffrey Epstein’s child sex crimes.

As Politico pointed out, the disgusting rhetoric employed by these Young Republican “leaders” reflects a widespread coarsening of political discourse and the increasing use of incendiary and racially offensive tropes. That coarsening comes straight from the top. The article referenced Trump’s post of an artificial intelligence-generated video portraying House Minority Leader Hakeem Jeffries in a sombrero, while Senate Minority Leader Chuck Schumer proposed trading free health care for immigrant votes. Offensive as that post was, it was only the latest of a long string of repellant social media outbursts from the senile and wildly unPresidential occupant of the Oval Office.

In his 2024 campaign, Trump spread false reports of Haitian migrants eating pets and, at one of his rallies, welcomed comedian Tony Hinchcliffe, who called Puerto Rico a “floating island of garbage” and joked about Black people “carving watermelons” on Halloween.

As the article quite accurately notes, the chat rhetoric, which spared few minority groups, essentially mirrored a number of popular conservative political commentators, podcasters and comedians, all of whom have participated in the erosion of what was previously considered acceptable discourse. It quoted a political science professor who attributed the increasing use of racist and anti-Semitic rhetoric to Trump’s “persistent use of hostile, often inflammatory language.”

In one astonishing exchange, a suggestion that they tie an opponent to neo-Nazi groups was discarded because participants noted that it might hurt more than help–because such ties would be viewed positively by their own voters. 

There is much, much more in the linked article, and it is sickening. It is also profoundly inconsistent with what I call the American Idea–the philosophy that permeates the Declaration of Independence, the Constitution and the Bill of Rights. It is an example–as if one were needed–of what the participants in protests like No Kings oppose.

Compare the disgusting, hateful, pro-Nazi comments in the chat (including one that “loved Hitler”) with the sentiments on the signs at the No Kings events, and draw your own conclusions about who the patriots truly are.

The Young Republicans who participated in this disgusting chat truly do hate the America that is trying to live up to its original ideals. And despite the pro-forma claims of elected Republicans trying to distance themselves from this filth, we know where they learned both the language and the sentiments.

 

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