The Roberts Court

Linda Greenhouse is an astute observers of the U.S. Supreme Court, so when I see her byline on an article, I read it carefully. Last Sunday, she provided an 18-year overview of the Roberts Court,— providing readers with a chilling description of what Americans have lost since John Roberts assumed the position of Chief Justice.

Greenhouse noted that the just-completed term was in many respects the capstone of Roberts’ 18-year tenure. As she writes,

To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

When Roberts joined the Court, Greenhouse says there was a “robust conservative wish list.” She then enumerates the items on that wish list:  overturning Roe v. Wade, reinterpreting the Second Amendment in order to turn gun ownership into a constitutional right, the elimination of race-based affirmative action in university admissions, the elevation of religion within the legal landscape (Greenhouse doesn’t say it, but what was wanted was the elevation of Christianity–not just “religion”)–and a drastic reduction of federal agencies’ regulatory power.

Despite the fact that William Rehnquist, the prior Chief Justice, was a committed conservative, the Court had not accomplished a single one of those goals. Greenhouse describes the case decisions that had failed to accomplish that conservative wish list– establishing precedents that would seem to preclude their realization.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

t’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

Lawyers point out that the major questions doctrine was invented out of whole cloth; it is certainly nowhere to be found in the Constitution or prior case law. Greenhouse notes its utility to a rogue Court: “how to tell a major question from an ordinary one? No surprise there: The court itself will decide….it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.”

You really need to click through and read the entire essay, because Greenhouse does a masterful job of explaining the disingenuous reasoning that allowed the Court’s majority to impose its reactionary policy preferences while ignoring “settled” law.

The web designer case was among the most egregious:

The court has created a religious opt-out from compliance with laws that govern the commercial marketplace…. [Gorsuch’s] opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity.

The essay concludes that the Court “has become this country’s ultimate political prize…  from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”

Absent a Blue wave in 2024, it will only get worse.

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It’s Worse When They Know Better

I tend to attribute a significant percentage of America’s governance problems to either stupidity or ignorance. Those aren’t the same thing; ignorance is simply a lack of knowledge, and it can be remedied by providing individuals with the relevant information. Stupidity, on the other hand, is an inability to understand or learn–lack of intellectual capacity.

When we view the antics of the loony-tune members of the misnamed “Freedom Caucus,” we are mostly looking at people who either lack intellectual capacity or who are too emotionally disabled to grasp complexity, nuance or the difference between fact and fiction. Or both. (Which raises significant questions about the people who voted for them, but that’s a separate issue….)

Policymakers who simply don’t “get it” can do a lot of harm, but generally, that isn’t their intent. They just don’t know what they don’t know.

The people who make my skin crawl, however, are those like Ted Cruz and Josh Hawley, elected officials who dishonestly pander to the MAGA cult despite clearly knowing better.

Hawley recently raised eyebrows with a phony Patrick Henry quote.It was actually a quote from 1950’s white supremacist paper that Hawley attributed—surely knowingly—to Patrick Henry.

When people responded by pointing out the falsity of the attribution, Hawley tweeted that he’d “owned the libs” and appended a quote supportive of Christian Nationalism, this time attributed to a speech by John Quincy Adams, “The Declaration of Independence first organized the social compact on the foundation of the Redeemer’s mission on earth.”

Now, Hawley attended Stanford as an undergraduate. He went to Yale Law School, where he was on the law review. It is highly unlikely that he is unaware of the wide variety of religious beliefs held by the nation’s founders. As the linked article notes, they ranged from guys like

Patrick Henry, who went around handing out Bible tracts and whose theology seems to have been something that would still be recognized as “evangelical Christian” today. There were guys like George Washington, who belonged to the Anglican Church but attended services at a variety of churches and was deliberately vague about endorsing any particular form of religious belief. There were a large number—including Thomas Jefferson, Benjamin Franklin, James Madison, Ethan Allen, and James Monroe—who styled themselves as Deist. To get a couple of Founding Mothers into the mix, Abigail Adams and Dolly Madison were also Deists….

The truth is that a diligent search by anyone seeking to find a founder who agrees with their own view can almost certainly find it, because those guys had a lot of very different views on religion. That includes Franklin, who just didn’t seem to think about it much, and who when religious friends told him he should study up and get himself “saved” near the end of his life, informed them that he didn’t think it was worth the bother as he would know the truth soon enough.

Just about the only thing this diverse group really agreed on when it came to religion was that they wanted to keep it out of their government. Their own experience with state religions of all types showed that religion was harmful to the state, and the state was harmful to religion.

While the linked article does a good–and factually correct–job of correcting the record, what it doesn’t do is speculate about the motives for Hawley’s particular form of dishonesty. Those motives confound me.

It is one thing for an intelligent man to be conservative (although in all fairness, today’s right-wingers are radicals, not conservatives). It’s another thing entirely to knowingly and intentionally lie–and worse, to choose a lie that is blatantly obvious and easily challenged–in the service of Christian Nationalism.

An article in Vanity Fair pointed out that Hawley–who also fancies himself an expert on “masculinity”– helped spread Trump’s election lies. In fact, Hawley’s lies have kept Politifact busy. But being routinely called out on those lies hasn’t deterred him.

One study of habitual liars found that the more a person lies, the easier it becomes for them to prevaricate, which in turn makes them more likely to lie. Clearly, Hawley–and Cruz and others like them–believe that pandering to a MAGA base composed primarily of people who lack the knowledge to recognize the falsehoods will serve them politically.

People who know better probably aren’t their voters anyway.

If this behavior is, as it appears, the result of cold calculation, it’s chilling. Unlike the Congressional dingbats, politicians like Hawley and Cruz are by definition very bad people, and the evil they do is anything but inadvertent.

Evidently, power really is an aphrodisiac.

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Moms For White Nationalism

Maybe we should call the wildly mis-named “Moms for Liberty” “Moms for White Nationalism.” Or “Proud Girls,” in recognition of their cozy relationship with the Neo-Nazi “Proud Boys.”

Heather Cox Richardson placed the organization in historical context.

The success of Biden’s policies both at home and abroad has pushed the Republican Party into an existential crisis, and that’s where Moms for Liberty fits in. Since the years of the Reagan administration, the Movement Conservatives who wanted to destroy the New Deal state recognized that they only way they could win voters to slash taxes for the wealthy and cut back popular social problems was by whipping up social issues to convince voters that Black Americans, or people of color, or feminists, wanted a handout from the government, undermining America by ushering in “socialism.” The forty years from 1981 to 2021 moved wealth upward dramatically and hollowed out the middle class, creating a disaffected population ripe for an authoritarian figure who promised to return that population to upward mobility… 

Richardson attributes the organization’s focus on America’s public schools to the fact that those schools teach democratic values–i.e., engage in“liberal indoctrination.”

As a Moms for Liberty chapter in Indiana put on its first newspaper: “He alone, who OWNS the youth, GAINS the future.” While this quotation is often used by right-wing Christian groups to warn of what they claim liberal groups do, it is attributed to German dictator Adolf Hitler. Using it boomeranged on the Moms for Liberty group not least because it coincided with the popular “Shiny Happy People” documentary about the far-right religious Duggar family that showed the “grooming” and exploitation of children in that brand of evangelicalism.

Moms for Liberty have pushed for banning books that refer to any aspect of modern democracy they find objectionable, focusing primarily on those with LGBTQ+ content or embrace of minority rights… A study by the Washington Post found that two thirds of book challenges came from individuals who filed 10 or more complaints, with the filers often affiliated with Moms for Liberty or similar groups. And in their quest to make education align with their ideology, the Moms for Liberty have joined forces with far-right extremist groups, including the Proud Boys, the Three Percenters, sovereign citizens groups, and so on, pushing them even further to the right.

Richardson notes that Moms for Liberty is the contemporary version of  “a broader and longstanding reactionary movement centered on restoring traditional hierarchies of race, gender and sexuality.” It’s the modern version of “Women of the Ku Klux Klan.” 

Given media emphasis on the gender gap, we sometimes lose sight of the fact that not all women are progressive. The Guardian recently considered the history of female rightwing activism.

As a movement, Moms for Liberty draws from the long history of rightwing women’s activism in the US – particularly in such activists’ identity as mothers. Where mothers’ movements are often associated with projects of social welfare, a counter-tradition of women’s activism has politicized motherhood to pursue staunchly conservative aims.

Fueled by anti-communist panic, they fought for the removal of textbooks, teachers and administrators they judged to be tainted by progressive ideals. A defining feature of these groups was how they leveraged cultural beliefs surrounding motherhood for political ends.

White mothers’ organizations were some of the most committed players in the mid-century project of “massive resistance” fought to preserve the Jim Crow order…. And one of its battlegrounds remains central to the mission of Moms for Liberty: textbooks and school curricula. In the south and beyond, mothers’ organizations fought to eliminate books and teachings that highlighted white violence or white supremacy.

Given their goals, I’m sure these “Moms” applauded when the Oklahoma Superintendent of Public Instruction explained that–under that state’s “anti-woke/anti-CRT” rules, schools could teach that the Tulsa massacre happened– but could not attribute it to racism.

Walters is a pro-Trump Republican who was elected to oversee Oklahoma education in November. He has consistently indulged in rightwing talking points including “woke ideology” and has said critical race theory should not be taught in classrooms. Republicans have frequently conflated banning critical race theory with banning any discussion of racial history in classrooms.

At the forum in Norman, Oklahoma, Walters was asked how the massacre could “not fall” under his broad definition of CRT.

Walters responded that the incident should be taught, but not attributed to the race of the victims. That, he said “is where I say that is critical race theory.”

According to the Oklahoma Historical Society, the massacre was the single worst incident of racial violence in American history.” White mobs burned down the Black neighborhood of Greenwood, in Tulsa, and killed hundreds of Black people.

Explaining why is now a “CRT no-no.” Moms-for-ridiculous-results must be so proud….

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About That Social Recession…

When public officials and pundits talk about recessions, they almost always are describing an economic downturn. But there are other kinds of recession–and there is troubling evidence that we are experiencing one that is arguably more worrisome than a bad economy.

It’s a “social recession,” and –as the Guardian has reported–political scientists and sociologists have described its contours.

Ever since a notorious chart showing that fewer people are having sex than ever before first made the rounds, there’s been increased interest in the state of America’s social health. Polling has demonstrated a marked decline in all spheres of social life, including close friendships, intimate relationships, trust, labor participation and community involvement. The continuing shift has been called the “friendship recession” or the “social recession” – and, although it will take years before this is clearly established, it was almost certainly worsened by the pandemic.

The decline comes alongside a documented rise in mental illness, diseases of despair and poor health more generally. In August 2022, the CDC announced that US life expectancy had fallen to where it was in 1996. Contrast this to western Europe, where life expectancy has largely rebounded to pre-pandemic numbers. Even before the pandemic, the years 2015-2017 saw the longest sustained decline in US life expectancy since 1915-18, when the US was grappling with the 1918 flu and the first world war.

There is plenty of debate over the causes of the phenomenon: the Internet, social media and our increasingly online lives come in for considerable criticism. Other observers  stress economic precarity and the decline of public spaces and community.

On the right, the critics indict contemporary culture, accusing the emphasis on inclusion of undermining social traditions —  especially gender norms and the longstanding “traditional” family structures that privileged (White) men and subordinated women.

Whatever the reason, there’s no denying that a growing number of people feel “lost, lonely or invisible.”

Pundits, politicians, bureaucrats and the like have generally fixated on the social recession’s potential to incubate political extremism. Entire institutes have been set up to study, monitor and surveil the internet’s radicalizing tendencies buoyed by anti-social loneliness. The new buzzword often used in this sphere is “stochastic terrorism” – meaning acts of violence indirectly motivated by messages of hate spread through mass communication – and much of this discussion has focused on the need to contain some unknown, dangerous element taking hold of the dispirited online. The goal here is not to solve a pernicious problem, but instead to pacify its most flagrant outbursts.

Getting the Wild West of the Internet under some sort of control is clearly necessary, but I would argue it isn’t sufficient.

Back in 2009, I wrote a book titled “Distrust American Style,” in which I argued (among other things) that the reason for what was even then obvious social anomie was a loss of trust in America’s social and governing institutions– and that the remedy is to make them trustworthy.

The linked article considers the evidence of growing social isolation and the influence of  our increasingly online lives, but it concludes by making an argument similar to mine:

Missing from all of this is the building block of society: trust. The past 50 years have seen America’s transformation from a high-trust to a low-trust society, accompanied by a collapse of authority across all levels: social, political and institutional. In 2022, trust dropped to a new average low – a development that has been the trend since the 1970s.

Americans do perceive that trust has diminished among the general population, according to Pew Research. The vast majority are “worried about the declining level of trust in each other”. Many also feel that they no longer recognize their own country, although that recording is probably caught up somewhat in political partisanship. The erosion of trust in the US began decades ago, after Watergate and the “crisis of confidence” during the 1970s, but it binds our current time to a more familiar past cynicism. Skepticism toward the state has evolved into more generalized distrust of society at large, constantly amplified by the internet.

Although it is absolutely true that malaise and discomfort always increase during periods of rapid social change, I’m convinced that the severity of this particular social recession is largely a result of diminished trust in all of our social institutions. It isn’t just government–its business interests dodging taxes and bribing Supreme Court justices, churches covering up molestations, sports figures doping, cable news sources spewing propaganda–the list goes on.

When people don’t know who or what they can trust, withdrawal from communal life is hardly surprising. That said, engagement in healthy communities is absolutely essential to democratic functioning–and trust is essential to engagement.

The challenge –in our MAGA and QAnon world–is figuring out how to restore that necessary trust.

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The Truthers Of The GOP

In your search for truth, you can find pretty much anything on the Internet. (As I used to tell my Media and Policy students, if you wonder whether aliens really landed in Roswell, I can find you five internet sites with pictures of the aliens…)

Every so often, a commenter will angrily dispute something I’ve written here by citing to “proof”– an internet site. Now, it is entirely possible for yours truly to make mistakes, but I do take pains to research and confirm the accuracy of data posted here, and when I’ve clicked on links supplied by the naysayers, I generally wind up with rather obvious propaganda.

Which brings me to Paul Krugman’s recent column addressing the issue of intentional misinformation–aka lying.

What Richard Hofstadter called the paranoid style in American politics is no longer a fringe phenomenon: Bizarre conspiracy theories are now mainstream on the American right. And one manifestation of this paranoia is the persistent dismissal of positive economic data as fake when a Democrat occupies the White House.

During the Obama years there was a large faction of “inflation truthers,” who insisted that deficit spending and monetary expansion must surely be causing runaway inflation, and that if official numbers failed to match that prediction it was only because the government was cooking the books.

Krugman says we have fewer inflation truthers now;  instead, we are seeing  the emergence of what he dubs “recession truthers” — a significant faction that seems frustrated by the Biden economy’s refusal, at least so far, to enter “the recession they have repeatedly predicted or insisted is already underway.”

The new group is dominated by tech bros, billionaires who imagine themselves focused on the future rather than the golden past, more likely to be crypto cultists than gold bugs…Indeed, the most prominent recession truther right now is none other than Elon Musk.

Krugman explains how we can know that these particular truthers are wrong. He points out that  America’s statistical agencies are highly professional– staffed and led by civil servants who care a lot about their reputations for integrity. As he says, we can be “pretty sure that if political appointees were cooking the books we’d be hearing about it from multiple whistle-blowers.”

Beyond that, while official data is still the best way to track the U.S. economy — no private organization can currently match the resources and expertise of the Bureau of Labor Statistics or the Bureau of Economic Analysis — there are, in fact, many independent sources of evidence on the economic state of the nation. And they all more or less confirm what the official data says.

He proceeds to identify several.

What’s true of economic data is also true of crime statistics–despite the GOP’s Trumpian distaste for the DOJ and FBI, federal statistics on crime remain trustworthy.

The Internet has fostered the rise of an “alternate reality” that provides MAGA folks with “data” more to their liking. The Internet is a wonderful resource, but there is no denying that it has enabled what pundits delicately call “misinformation.” Promulgating that misinformation–i.e., baldfaced lying– is the primary strategy employed by today’s GOP.

And now, a rogue judge in Louisiana has just made it more difficult to address the problem. As NPR reported:

The government’s ability to fight disinformation online has suffered a legal setback that experts say will have a chilling effect on communications between federal agencies and social media companies.

A Tuesday ruling by a federal district judge in Louisiana could have far-reaching consequences for the government’s ability to work with Facebook and other social media giants to address false and misleading claims about COVID, vaccines, voting, and other issues that could undermine public health and erode confidence in election results.

District Court Judge Terry Doughty, who was appointed by President Donald Trump, issued a preliminary injunction on Tuesday that bars several federal departments and agencies from various interactions with social media companies.

The judge endorsed QAnon conspiracy theories and argued that conservative views are being censored. (Actually, critics insist that social media sites aren’t  doing enough to police disinformation and false claims.)  A complete explanation of the truly bizarre ruling–which has been appealed–is at the link.

Judge Doughty is one of the loony-tune, reliably rightwing judges put on the bench by Trump. He calls the federal government the “Ministry of Truth,” he’s blocked vaccine mandates for health care workers, and he overturned the ban on new leases for oil and gas drilling. 

As one pundit wrote, random district judges “decanted out of Federalist Society cloning tanks” are seizing control of giant chunks of federal policy, based on lawsuits filed by totally deranged activists.

No wonder people don’t know who or what to believe.

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