Sheila Kennedy – Page 187 – A jaundiced look at the world we live in.

The Trump Court

I’ve been on the email list of the Brookings Institution for a number of years. It was–and is– an excellent source of thoughtful, balanced policy analyses, and it provided me with valuable background for my classes when I was teaching Law and Policy.

Over the years, I’ve become accustomed to the language and style of Brookings publications–very consistent with that of academic discourse and a variety of other highly credible, scholarly resources. (Not like the snark you often get here.) So I was bemused–to put it mildly– by the opening paragraphs of a recent essay.

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected.” With those chilling words an illegitimately obtained Supreme Court majority tore up the lives of Americans & the Constitution in the Dobbs opinion authored by Justice Samuel Alito. The votes for this opinion were only available because Merrick Garland was wrongly blockaded at the end of the Obama administration and Amy Coney Barrett hypocritically jammed through at the end of the Trump one.

The Alito opinion comes in the midst of congressional hearings exposing the sickness of Trump’s style of governance—Trumpery, as we term it in a new book. The Dobbs opinion also exemplifies Trumpery, and its features provide a useful framework for understanding just how bad the opinion is. The Court should be known from here on out as the Trump Court.

Perhaps the single most defining characteristic of Trumpery is its disdain for the rule of law. The Alito opinion in the Dobbs case has that in spades. A central tenet of Supreme Court jurisprudence is stare decisis, the idea that once the Supreme Court has ruled on something, it is settled law and is entitled to permanence, even if later courts may disagree with it. That is particularly true where you have a decades long established precedent like Roe.

It is certainly true that past Courts have overruled settled precedents when it has become blindingly obvious that they are unjust and/or inconsistent with contemporary science and mores–Plessy v. Ferguson and Bowers v. Hardwick come to mind. But the thrust of the quoted paragraph is accurate; until the elevation of theocratic jurists intent upon the destruction of jurisprudence equating liberty with a significant degree of personal autonomy, precedents were accorded a high level of deference.

The essay proceeded to compare the current iteration of the Supreme Court to Trump’s incessant assaults on democratic norms– assaults that the January 6th Committee hearings are meticulously documenting.

As we are being painfully reminded in the Jan. 6 hearings, that assault over time undermined and weakened the executive branch and Americans’ faith in it. Alito and the five justices who joined with him are sending the Supreme Court down that same slippery slope.

The authors make a point that I have made repeatedly in the wake of this deeply dishonest decision–it didn’t just take aim at abortion. It was a point that Justice Thomas acknowledged in his concurrence:

“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Americans’ right to contraception, to make consensual choices in the bedroom and to same-sex marriage are all up for grabs. How long before states are also free to re-criminalize premarital sex and interracial relationships?

There are other parallels: Trump was shameless, and the authors point out that–like Trump–Alito displays absolutely no embarrassment about the rampant dishonesty of his opinion, dishonesty that was necessary in order to reach a result he personally favored. Nor does this Court care about the social consequences of a predictably divisive opinion. Alito wrote “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”

Of course, concern about public reaction is one reason for the doctrine of stare decisis, which aims to avoid abruptly upsetting long-settled rules and expectations. Intensifying social divisions was also a Trumpian trademark, and as the authors note, “this opinion smacks of a similar approach.”

It’s hard to disagree with the authors’ conclusion that this decision–one of this term’s string of shocking and damaging departures from settled jurisprudence– will decimate what is left of the legitimacy of the Supreme Court.

Although it was news to Alabama’s current Senator, the U.S. has three branches of government. Unfortunately, none are currently functional.

We have a gridlocked Congress, immobilized by lawmakers putting fealty to party over loyalty to country; an Executive whose agenda is obstructed by that Congress; and now, a rogue Court disdained and distrusted by a majority of citizens.

That’s a description of a failed state.

No wonder the language employed by Brookings these days is less restrained.

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“Southern Culture” Is A Euphemism..

Sometimes, the subhead on a headline, or a quotation in an article, strikes a definite chord with me. That happened when I was reading about the recent destruction of some mysterious granite markers, the Georgia Guidestones (sometimes referred to as America’s Stonehenge). As several recent articles reported, those stones are “no longer casting a shadow in rural Elbert County, Georgia.” Early on July 5th, one of the six slabs of granite comprising the display was destroyed by what the Georgia Bureau of Investigation reports was an intentional explosive.

The quotation that caught my eye was that of a local pastor and historian, who said that the stones would probably have survived a nuclear war, “but they could not survive Southern culture.”

“Southern culture” in this context is a euphemism for deeply-rooted superstition abetted by a generous dollop of ignorance.

The linked article gives the background: In 1979, the president of a local granite company was asked to create the monument by someone identifying himself as Robert Christian (later R.C. Christian–probably a pseudonym), who claimed to represent a group of concerned Americans. Christian obtained funding for the massive project, and the granite company proceeded to create it.

The stone structure was revealed to the public on the spring equinox in 1980. Together the 951 cubic feet of granite weighed 237,746 pounds. The center slab was surrounded by four standing stones of similar height, and the entire structure was capped by a sixth stone 6 ½ feet wide, 10 feet long and 7 inches thick.

The impressive size of the structure was only part of its allure. Carved on each of the four outer slabs were 10 precepts — a message to humanity — repeated in English, Spanish, Swahili, Hindi, Mandarin Chinese, Hebrew, Russian and Arabic. Translators from the United Nations assisted Christian with the translations.

Inscribed in the capstone was the phrase “Let these be guidestones to an Age of Reason,” written in ancient Greek, Egyptian hieroglyphs, Sanskrit and Babylonian cuneiform.

The center slab and capstone also acted as an astrological calendar, with carefully cut holes for observance of the moon, sun and North Star. Astronomers from the University of Georgia assisted in refining this part of the project.

While Christian’s identity is still a mystery, his purpose is not.

An “Age of Reason.” If only…

At the time, there was widespread fear of a global nuclear war, and the stones were intended to be a beacon of sorts for those who would survive–a prescription for a more peaceful world.

Criticism of this project could certainly be mounted on many grounds: a vanity project, a waste of money, an ineffective indulgence…But of course, none of those reasonable quibbles prompted the fierce opposition to–and fear of– this monument.

Idiocy did.

Nearly immediately, local pastors decried the stones as satanic. “We don’t think Mr. Christian is a Christian,” said the Rev. James Traffensted of the Elberton Church of God after the 1980 ceremony. “Look what it says about the unity of the world. That’s where the Antichrist will unite the governments of the world.”

I didn’t realize that world unity and peace was a sign of the Antichrist, but given the behavior of so many so-called “Christians,” perhaps I should have.

Since there is no conspiracy theory or bizarre “religious” belief that today’s Republicans won’t embrace, I probably shouldn’t have been surprised by the following passages from the report.

Former Republican gubernatorial candidate Kandiss Taylor made demolishing the stones part of her 2022 campaign. On May 2, she tweeted: “Elect me Governor of Georgia, and I will bring the Satanic Regime to its knees— and DEMOLISH the Georgia Guidestones.”

After the stones were destroyed Wednesday, she tweeted, “God is God all by Himself. He can do ANYTHING He wants to do. That includes striking down Satanic Guidestones.”…

The bombing was not the first time the monument was targeted. In 2008, a masked man calling himself an “American patriot” defaced the monument as a warning to the “global elite.” He tied the Guidestones to a coming new world order, a conspiracy theory perpetuated by QAnon followers and expressed by personalities such as InfoWars founder Alex Jones.

Conversations on this blog often include efforts to describe Americans’ current divides: Red versus Blue, urban versus rural, educated versus uneducated…The steady growth of incidents like this one suggest a more accurate division might be: reasonably sane versus bat-shit-crazy.

If humanity actually survives this period–increasingly characterized by the rejection of logic, science and empirical evidence– historians will probably describe these times as “the age of insanity.”

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The War On Government

One of the consequences of the low civic literacy I keep complaining about is a widespread lack of understanding of the importance of systemic problems. Our current media environment doesn’t help.

Let me give a few examples to explain what I mean.

The media covers our election “horse races,” but largely ignores the systemic gerrymandering that precedes individual races and pre-ordains too many of their outcomes. The result is that the “win/lose” results don’t really reflect majority voter preferences, but that is rarely the focus of discussion.

The media routinely reports the results of U.S. Senate action, but has only begun to recognize the pernicious effects of the filibuster, which has changed that chamber from one operating on majority rule to a broken system that now requires a super-majority to pass even the most trivial laws.

Americans remain largely unaware of the undemocratic effects of the Electoral College –how that outdated system has operated to install as President candidates who lost the popular vote, and how it threatens to do so again.

As America’s governance has become ever more dysfunctional, recognition of those particular systemic flaws has grown, but–as we can see from reactions to the recent stream of radical Supreme Court decisions–while there is anger at the immediate and visible results, there is little recognition of the truly horrific systemic effects of those decisions.

The overruling of Roe is just one example. As I’ve written before, the Court achieved that result by undermining an important doctrine–a doctrine that supports a number of other important liberties. The damage done goes far, far beyond the “headline.”

Similarly, the media has largely overlooked the truly breathtaking assault on American government represented by the decision in West Virginia v. EPA. That decision limited the extent to which Congress can delegate regulatory decisions, and–together with other, less publicized cases–amounts to a war on government’s ability to protect the “general welfare.”

As Sam Baker recently wrote in Axios, the Court is moving to restrict the authority of regulatory agencies in the executive branch.

These cases may not always feel like blockbusters in isolation, but they can constrain federal power in ways that are almost impossible to reverse, with dramatic implications that cut across multiple policy areas.

Driving the news: Just in the past few months, the court …

Prevented the CDC from enforcing an eviction moratorium due to COVID.
Prevented OSHA from enforcing a vaccine mandate in workplaces.
Prevented the EPA from carrying out some of its most aggressive proposed limits on greenhouse gasses.
Some of those issues are bigger than others, but each of those cases raised questions about overarching legal principles related to executive-branch authority.

Taken together, it’s clear which direction things are headed — the federal government is going to be able to do a lot less than it has been able to do in the past.

At least three of the radical Justices are hoping to reinstate something called the “nondelegation doctrine” — a theory that Congress cannot delegate to agencies of the executive branch any of the powers the Constitution gives to Congress.

It’s not carrying the day right now, but at least three justices seem to want to bring it back. When the court struck down OSHA’s vaccine mandate, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said that even if Congress had expressly given OSHA the power to impose a vaccine mandate, that likely would have been unconstitutional.

In the 1800s, this debate was reasonable. Back then, We The People elected Congressmen (and they were CongressMEN) to make legal and regulatory decisions that were well within the competence of most lawmakers. In the 21st Century, life is considerably more complicated and a great many of those decisions require a degree of scientific, legal and/or medical expertise that we cannot reasonably expect from even our non-crazy lawmakers.

Forbidding Congress from delegating considerable authority over highly technical issues is a way of strangling the ability of government to act.

We can all point to regulatory decisions we dislike. We can argue that this or that rule exceeds the agency’s grant of authority. But removing that authority–telling agency personnel that they cannot regulate environmental hazards, or require technical food and drug safety measures, or mandate certain responses to diseases and pandemics, etcetera, etcetera–is tantamount to telling the executive branch its authority doesn’t reach far beyond coining money and declaring war.

Focusing only on the “headline” results of these decisions–appalling as those obvious results are–blinds us to their systemic implications. This Court is coming for the underpinnings of federal governance.

Of course, if climate change destroys the planet, it may not matter…..

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I Know I’m A Broken Record…

Can you stand one more diatribe about the importance of civic literacy? Especially now, as Congressional hearings and Supreme Court decisions demonstrate not just how close we’ve come to disaster?

An enormous amount of research confirms that far too many Americans lack even the most basic knowledge needed to make informed public judgments. Productive civic engagement simply cannot occur absent an accurate understanding of both American history and the “rules of the game”– especially but not exclusively the Constitution and Bill of Rights, the documents that frame and constrain policy choices in America.

The American Constitution was a product of the Enlightenment, the 18th Century philosophical movement that gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government. Too few Americans are familiar with the Enlightenment—and even fewer recognize that it changed the definition of individual liberty. The Puritans who settled the New World had seen liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and their right to use the power of government to make sure their neighbors did the same. (Sort of like the current majority on the Supreme Court.) It’s a perspective embraced by today’s Puritans, like Ron DeSantis.

The Enlightenment ushered in the belief that we humans are entitled to a significant degree of individual autonomy just because we’re human– and that government has an obligation to respect those inborn, inalienable rights. Accordingly, the Bill of Rights was written to protect us from overzealous government. The Bill of Rights is essentially a list of things that government is forbidden to do– dictate our religious or political beliefs, search us without probable cause, or censor our expression, for example—and it can’t do those things even when popular majorities approve.

Of particular relevance today is the fact that the U.S. Constitution as amended and construed over the years guarantees all citizens an equal right to participate in democratic governance– and to have our preferences count at the ballot box. Those guarantees are meaningless without sustained civic engagement by an informed, civically-literate citizenry.

Let me say that a different way: Protection of our constitutional rights ultimately depends upon the existence of a civically-literate electorate.

America’s political culture is the most toxic it has been in my lifetime– and I’m old. There are lots of theories about how we got here—from partisan gerrymandering and residential sorting to increasing tribalism to fear generated by rapid social and technological change and exacerbated by dishonest partisan media. But our current inability to engage in productive civic conversation is also an outgrowth of declining trust in our social and political institutions—primarily government. Restoring that trust is critically important —but in order to trust government, we have to understand what it is and isn’t supposed to do.

We have to understand how the people we elect are supposed to behave in order to recognize deviations from that standard.

Bottom line: an accurate, basic, common understanding of America’s history and philosophy is absolutely critical to our continued ability to talk to each other, build community and function as Americans, rather than as members of rival tribes competing for power and advantage. Unfortunately, basic civic knowledge is in very short supply, as even a cursory glance at FaceBook or Twitter will demonstrate.

The great debates between the Federalists and Anti-Federalists were about the proper role of government. We’re still having that debate. The overarching issue is where to strike the balance between government power and individual liberty. The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty—or tell you to wear a mask?

In our Constitutional system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong. What they don’t have is the right to harm or endanger others, or the right to deny an equal liberty to people with whom they disagree. Drawing those lines can be difficult; it’s impossible when significant numbers of citizens don’t understand the most basic commitments of our constituent documents.

When people don’t understand when government can properly impose rules and when it can’t– when they don’t understand the most basic premises of our legal system– our public discourse is impoverished and ultimately unproductive.

That’s where we are today.

Widespread civic ignorance has allowed dishonest partisans to rewrite history, pervert our basic institutions, and ignore the rule of law– not only undermining the Constitution but eroding the trust essential to the maintenance of democratic institutions.

To quote a former President, we are in “deep doodoo.”

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Omens

Readers of this blog frequently send me articles I am unlikely to have seen; often, those are from their local papers (where such papers still exist). I keep the ones I find interesting in a file, and from time to time, I review them. Often, the saved articles no longer seem relevant, but sometimes, the opinions expressed and predictions made are even more meaningful than when I first saw them.

That was the case with “Early Warning Signs,” an essay from the Madison, Wisconsin Capital Times. Published in March of 2021, the essay began

You’ve likely grown numb to daily outrages by the Republican Party of Donald Trump. You’ve given up hope that at some magical moment, when some line is crossed, masses of educated, intelligent people who identify as Republicans will gently slap their foreheads and say enough is enough.

Enough of the lies about stolen elections, the denial of facts and the rejection of expertise. Enough with a party that has morphed from being about personal responsibility and limited government to one primarily about grievance.

The author then looked back, to see whether incidents” that seemed innocuous at the time” might actually have been “harbingers of catastrophic dysfunction.” He identified three: the vast number of threats to the life of then-candidate Obama that required Secret Service protection much earlier than had been the case with previous Presidential candidates; John McCain’s choice of Sarah Palin as his running mate; and the rise of Rush Limbaugh and “hate radio.”

The volume of threats against Obama–then a little-known Senator–was very clearly prompted by the racism and racial grievance that has become far more visible since his Presidency.

Here in 2021, one can see the direct line from there to a party whose white supremacist faction carries Confederate flags, including inside the U.S. Capitol during the Jan. 6 insurrection. Is it any wonder that after eight years of fury about a Black man being president that those boiling with racial hatred would come to worship a racist like Trump?

The choice of Palin–and especially the GOP base’s response to that choice– was the moment when it “became OK for a politician to just exalt in ignorance.” The author quoted Obama’s recent book:

“What became abundantly clear as soon as Sarah Palin stepped into the spotlight was that on just about every subject relevant to governing the country she had absolutely no idea what the hell she was talking about,” he wrote.

“I noticed from the start that her incoherence didn’t seem to matter to the vast majority of Republicans; in fact, anytime she crumbled under questioning by a journalist, they seemed to view it as proof of a liberal conspiracy.”

Like they did with Ronald Reagan years earlier, Republicans said the self-described “hockey mom” had “good instincts” and would grow into the job, Obama wrote. “It was, of course, a sign of things to come, a larger, darker reality in which partisan affiliation and political expedience would threaten to blot out everything.”

As the essayist noted, it’s a straight line from Palin to Trump and to Marjorie Taylor Greene and her ilk.

With his choice of a third omen, the writer echoed my frequent lament about the sea-change in America’s media environment, a change foreshadowed by the emergence of Rush Limbaugh. As he noted, Limbaugh sounded “Trumpian 25 years before Trump became president.”

Limbaugh introduced a formula for ratings success that many others would ape: giving voice to the cultural grievances of older, uneducated White guys. After the creation of Fox News–which was specifically and very consciously aimed at the anger of that same demographic–it became acceptable to openly express, and defend, ignorance, racism, homophobia and misogyny.

And so here we are.

There may have been other signs, other omens we missed, but it’s hard to argue with the three chosen by this writer. That, of course, leads me to wonder what omens we are currently missing.

The overturning of Roe is clearly one of those–but will it trigger a return of respect for women’s autonomy, or a march toward Gilead?

The revelations of the January 6th Committee could prompt a return to serious, democratic governance–or fail to halt the next coup effort by proponents of the Big Lie.

The astonishing overreach of the Supreme Court’s hobbling of the EPA (not to mention the ability of all executive branch agencies to issue regulations) could generate environmental energy–or be a harbinger of planetary doom.

That’s the problem with omens–you can’t tell where they’re pointing until after the fact.

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