The Rubber Has Hit The Road

Remember that old saying about “when the rubber hits the road”? Its import was that, when the rubber hit the road, it was time to act, to decide…Well, given overwhelming evidence of the GOP’s attempted coup, the neutering of Congress by use of the filibuster, and the morphing of the Supreme Court into a religious tribunal, it’s fair to conclude that the rubber has indeed hit pavement, and a failure to move quickly to recapture the institutions of American life will turn this country into a place most of us won’t want to inhabit.

In the wake of the Court’s ruling in Dobbs, The Guardian was especially blunt. In an article headlined “How the Christian right took over the judiciary and changed America,” it reported–quite accurately-

The supreme court decision in Dobbs v Jackson Women’s Health Organization, which reverses the constitutional abortion rights that American women have enjoyed over the past 50 years, has come as a surprise to many voters. A majority, after all, support reproductive rights and regard their abolition as regressive and barbaric.

Understood in the context of the movement that created the supreme court in its current incarnation, however, there is nothing surprising about it. In fact, it marks the beginning rather than the endpoint of the agenda this movement has in mind.

 At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

Let me just repeat that last paragraph:

At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

How did this happen? How did White Christian Nationalists effectively take over a major political party and the courts? As the Guardian article notes, answering that question requires looking back at the history of the Christian Nationalist movement, and how it “united conservatives across denominational barriers by, in effect, inventing a new form of intensely political religion.”

Christian nationalists often claim their movement got its start as a grassroots reaction to Roe v Wade in 1973. But the movement actually gelled several years later with a crucial assist from a group calling itself the “New Right”.

Among the many things the New Right opposed were feminism and the civil rights movement. One thing that they were not particularly angry about, at least initially, was the matter of abortion rights. A primary concern was that the Supreme Court might end tax exemptions for segregated Christian schools, but they knew “Stop the tax on segregation!” was unlikely to be an effective rallying cry for their new movement. They needed an issue that could be used to unify the various, disparate elements of the New Right, an issue that could draw in the rank and file.

In many respects abortion was an unlikely choice, because when the Roe v Wade decision was issued, most Protestant Republicans supported it. The Southern Baptist Convention passed resolutions in 1971 and 1974 expressing support for the liberalization of abortion law, and an editorial in their wire service hailed the passage of Roe v Wade, declaring that “religious liberty, human equality and justice are advanced by the Supreme Court abortion decision.”

On the other hand, abortion brought conservative Catholics into the movement with conservative Protestants and evangelicals, and allowed the New Right to blame abortion rights for all manner of perceived social ills of the age – especially women’s liberation .”The issue became a focal point for the anxieties about social change welling up from the base.”

In recent decades, the religious right has invested many hundreds of millions of dollars developing a complex and coordinated infrastructure, whose features include rightwing policy groups, networking organizations, data initiatives and media. A critical component of this infrastructure is its sophisticated legal sphere.

 Movement leaders understood very well that if you can capture the courts, you can change society.

And so here we are. The Courts have been captured; the Congress (thanks to gerrymandering and filibuster Joe Manchin) has been neutered. Over 100 state candidates running for the right to count our votes are “Big Lie” proponents.

The rubber has hit the road.  Americans must turn out in massive numbers this November to  dislodge the theocrats and begin the process of reclaiming  America.

All available research shows a majority of Americans strongly opposed to the Christian Nationalists who have assumed control of our no-longer-so-democratic institutions. All voting history shows that a disastrous number of those Americans won’t bother to vote.

If that doesn’t change in November, the America we know is over.

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A Way Around

Sane Americans need to vote as if our lives depend upon it, because in a very real sense, they do.

In the meantime…

When the religious warriors on the Supreme Court handed down their decision requiring states that funded private schools to fund religious ones as well– Carson v. Makin– our daughter (who spent 20 years on our local school board) asked whether there was now any way to fashion voucher programs that would prevent most religious schools from getting taxpayer money. Surely good lawyers could devise such a work-around.

Turns out there is. And it’s a tactic that can also be used to blunt some of the most dangerous consequences of the Court’s even-more-radical gun decision. (Unfortunately, I see no comparable “work arounds” for the Court’s horrifying abortion decision.)

Maine shows the way to keep public dollars out of church coffers. In Carson, the Court based its decision on the disparate treatment of religious and nonreligious private schools, so Maine eliminated that disparity–and did so in the best possible way.

What is surprising is how little the 6-to-3 decision in the Maine case, Carson v. Makin, will matter practically. And the reason offers a glimpse of hope for those who worry about a future dominated by the court’s conservative supermajority — including the many Americans troubled by the court’s decision in the gun case, New York State Rifle and Pistol Association v. Bruen.

Let’s start with the Carson case. Anticipating this week’s decision, Maine lawmakers enacted a crucial amendment to the state’s anti-discrimination law last year in order to counteract the expected ruling. The revised law forbids discrimination based on gender identity and sexual orientation, and it applies to every private school that chooses to accept public funds, without regard to religious affiliation.

The impact was immediate: The two religious schools at issue in the Carson case, Bangor Christian Schools and Temple Academy, said that they would decline state funds if, as Maine’s new law requires, accepting such funds would require them to change how they operate or alter their “admissions standards” to admit L.G.B.T.Q. students.

The “fix” to Maine’s law allows religious schools to participate in the program on an equal basis with other private schools–and as an added bonus, ensures that secular private schools with discriminatory practices will also be denied the right to participate.

In an aside, the Court acknowledged that Maine also retains the right to eliminate its voucher program at any point. (Since most voucher programs–like Indiana’s– have failed to improve student outcomes while bleeding the public schools of needed resources, that’s a right I think they should exercise. But I digress.)

As the linked Times essay pointed out, a version of Maine’s tactic can also be adapted to use by the states (all blue) trying to combat gun violence.

Justice Clarence Thomas’s majority opinion made clear that the constitutionality of restrictions is historically “settled” in “sensitive places” such as legislatures, courtrooms and polling locations, and that “modern regulations” may “prohibit” the carry of firearms in “new” places. Given that, states should enact an expansive list of so-called sensitive places where guns may not be carried. Though Justice Thomas did not specify which those might be, during oral arguments in November, several justices pondered that they might include public transportation, crowded venues, university campuses and places where alcohol is served.

 Justice Brett Kavanaugh noted in a concurrence joined by Chief Justice John Roberts, moreover, that while states may not impose restrictions that prevent “ordinary, law abiding citizens” from carrying a gun to defend themselves, states can still enact rigorous requirements for a public carry permit, such as stringent background and mental health records checks and completion of regular training courses.

Another promising reform for states to consider would be to require gun owners to possess firearm liability insurance. Not only would such a requirement ensure that victims of gun violence can recover for their losses and “provide financial incentives for responsible arms carrying,” but it also draws strong historical support from a host of 19th century “surety laws” recognized in the court’s opinion.

That last “promising reform” echoes several comments made to this blog. 

This guest essay reminds us that–as critical as it is to repair a broken and increasingly illegitimate  Court–until that repair can be accomplished, we are not without resources to fight, or at least blunt, the consequences of the Court’s most dramatic departures from constitutional precedent and common sense. We just need lawmakers who understand the need to do so.

That means that the most important thing we can do is remember in November which party is responsible for replacing Justices committed to the Constitution with  a religious tribunal–and vote accordingly. 

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What Can We Do About The Supreme Court?

It’s no longer possible to avoid recognizing the extreme radicalization of the United States Supreme Court.  As an email from the Center for Inquiry accurately characterized the latest ruling, it was “not the act of a secular court but of a religious tribunal.” 

Since the ascension of Mitch McConnell’s hand-picked culture warriors, we have seen a steady stream of decisions laying waste to the legal underpinnings of American liberties. I have written before about the terrifying implications of the abortion ruling,  and why it threatens a much broader array of personal liberties than reproductive autonomy. (In his concurring opinion in Dobbs, Thomas made that threat quite explicit.) The Court has continued its assault on genuine religious liberty, which requires separation of church and state. And its wholesale abandonment of previous precedents on gun legislation–including even the pro-Second-Amendment decision in Heller written by “originalist” Antonin Scalia–is further evidence of a Court majority intent upon rewriting and re-imagining two hundred years of constitutional jurisprudence.

A reader asked me to comment on a report from the Brennan Center proposing changes to the way jurists are elevated to the high court. It is worth emphasizing that the Center issued this paper in 2019, and that it is only one of numerous proposals published during decades of scholarship addressing increasing concerns about the Court’s operations– the analysis was not written as a response to the recent blitz of appalling decisions.

Perhaps the thorniest issue raised by the current operation of the Court involves what the Brennan paper calls “democratic accountability.”

Judicial accountability is different from legislative or executive accountability; the whole purpose of lifetime appointments to the federal bench was to insulate the judiciary from the political passions of the moment–to avoid the sort of “accountability” to political pressure that the other branches  quite properly experience. The Executive and Legislative branches were created to be (more or less) directly answerable to “we the people,” but judges were expected to make thoughtful and considered decisions based on the law and facts as they saw them. (Electing judges, as some states do, is a repudiation of that foundational intent.)

On the other hand, the courts certainly weren’t meant to be untouchable quasi-legislative bodies. (Remember when Republicans screamed about “Judicial Activism” and “Imperial Courts”?) There are several ways to insure appropriate democratic accountability without abandoning the original purpose of lifetime appointments.

As the Brennan report noted,

Two funda­mental flaws in the Consti­tu­tion’s appoint­ment system must be fixed. First, there is no regu­lar­ized system for Supreme Court appoint­ments. Because pres­id­ents can appoint new justices only when a sitting justice resigns or dies, justices are appoin­ted unevenly, so that some pres­id­ents have many appoint­ments, while others have few or even none. In addi­tion, because justices now serve longer on aver­age than their prede­cessors, there are signi­fic­antly fewer appoint­ment oppor­tun­it­ies. These devel­op­ments fray the only formal link between the court and the people — nomin­a­tion by an elec­ted pres­id­ent and confirm­a­tion (or not) by elec­ted senat­ors. In the early days of the repub­lic, when the court was viewed as weak, such defects caused little harm. But today, with the court hold­ing immense power, the lottery appoint­ment system under­mines the court’s consti­tu­tional legit­im­acy and erodes the court’s connec­tion to our demo­cracy.

Second, life tenure permits justices them­selves to stra­tegic­ally time their retire­ments so that an ideo­lo­gic­ally like-minded pres­id­ent can appoint their successor. Recently, this has become the norm. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders. In addi­tion, some justices have remained on the court after a severe decline in their mental or phys­ical capa­cit­ies, in hopes of last­ing until a pres­id­ent who shares their legal and policy pref­er­ences takes office. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders when they wrote the Consti­tu­tion.

In the current system, some pres­id­ents appoint an outsized number of justices, some justices outlive the offi­cials who appointed them by many years, and  justices can time their retirements to ensure the ideo­logy of their successors. Worse still, a majority of Justices on the current Court were appointed by Presidents who had lost the popular vote.

As a result, today’s Court lacks democratic legitimacy. 

Correcting the two flaws described in the linked report would require a constitutional amendment prescribing regular appointments coupled term limits. (Constitutional scholars argue that 18-year terms should be adequate to insulate judges from political pressure.)

Given the daunting barriers to passage of constitutional amendments–not to mention the lengthy timeframe of even successful efforts– several legal scholars advocate enlarging the Court. Changing the number of Justices can be done by statute, and in fact, has been done before. Suggestions for enlarging the Court long preceded the current Court, and were prompted primarily by workload concerns–more recent Courts hand down far fewer decisions than previous ones did.

 The author of the Brennan report dismisses that remedy as too partisan, but–as I noted previously–his paper was written before Amy Coney Barrett joined the Court, bringing to five the number of radical religious culture warriors (with the frequent concurrence of the Chief Justice) intent upon dismantling years of constitutional jurisprudence. And five is enough to get the job done.

If the addition of justices is seen as partisan, so be it. The current Court is a thoroughly partisan religious tribunal–and a clear and present danger to the Republic. Ignoring that fact is not an option.

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What Now For Gun Control?

Congress appears to be on the cusp of passing a gun-control measure, breaking a 30-year standoff. The bill takes baby steps toward the sort of gun measures that would meaningfully reduce the carnage, but the fact that Congress is passing anything  must be applauded as progress.

Of course, whether those baby steps will survive the horrendous, twisted logic of the Supreme Court’s recent evisceration of government’s ability to control armed mayhem remains to be seen.

Given that astonishing and dishonest opinion, what can be done?  

As a recent article from Talking Points Memo reminds us, it’s always, ultimately about the culture– and cultures are shaped by prevailing narratives.

An object, cloaked in an aura of glamor and cool, is, or at least feels, ubiquitous in American society. The object is a clear threat to public health — though that fact often gets eclipsed by arguments emphasizing the rights of those who like to use the object. Powerful, monied and well-connected special interest groups stand behind the object, and work fervently to thwart regulation and restrictions on it. 

Today, that object is a gun. In our recent past, it was a cigarette. 

Most readers of this blog remember when cigarette smoke was everywhere. We encountered it on airplanes, in bars and restaurants, and in our offices. The federal government was loathe to act; the FDA didn’t even get authority to regulate tobacco until 2009.

So–if government didn’t drive the change, what explains the anti-cigarette movement’s incredible success? In 2020, the most recent year for which the Centers for Disease Control provides data, 12.5 percent of Americans over the age of 18 smoked. In 1965, it was 42.4 percent.

That’s a pretty impressive victory. The question is, can we use the tactics that were so successful against Big Tobacco to get meaningful gun control, especially since the Court has evidently all but neutered government? 

Gun owners are in the minority. Smokers were also a minority — but, as the article notes, they were a powerful minority.

“In the 20th century, the smokingest segments of Americans were white men; now, the most gun owningest segments of Americans are white men,” Sarah Milov, associate history professor at the University of Virginia and author of “The Cigarette: A Political History,” told TPM. “The consequence of that for non-gun owning Americans is that they live in a world where public space is governed by the political demands and practices of what is truly a minority.”

The gun and cigarette lobbies spent millions obscuring that fact, presenting guns and cigarettes as foundational and ubiquitous parts of American life. Resistance to them, then, is futile — even unpatriotic.

The anti-smoking campaign changed attitudes about smoking in public places. They countered arguments about smokers’ rights by focusing on the harm to those unable to avoid second-hand smoke. When Big Tobacco fought no smoking rules for bars and restaurants, arguing that customers who didn’t like smoky venues could go elsewhere, activists pointed out that workers in those establishments had no such choice.

Experts think there are lessons to outsource to the fight for gun regulation: the anti-tobacco movement was coalitional, with outposts in every state; activists quickly realized the power of changing the narrative and stigma around public smoking, and of centering the rights of nonsmokers being harmed by cigarette smoke; instead of despairing at Congress’ coziness with big tobacco, they took the fight to local government. 

Even before the Court’s decision in New York State Rifle & Pistol Association v. Bruen,  ALEC had made it impossible to enlist most local governments in the movement to control weapons; a majority of states have so-called “pre-emption” statutes drafted by ALEC, preventing local governments from regulating firearms and ammunition.

The gun industry also benefits from a seriously devoted fan base. Many — though far from all — gun owners see their firearms as more than a recreational tool or even a means of self defense. The cult of the gun has grown so powerful that some owners consider it a part of their identity: shorthand for individualism and freedom, for triggering the libs and intimidating a federal government that supposedly wants to change their way of life. 

Even the tobacco industry’s biggest customers largely lacked that fervor.

Despite these considerable disadvantages, gun control advocates can begin to change the narrative from the NRA’s emphasis on gun owners’ rights. We can form coalitions emphasizing the rights of the rest of us–a clear majority– not to be shot and not to live in constant fear for ourselves and our children.

It took a long time to change the culture around smoking, but when the narrative changed, so did the culture– and when the culture changes, so (eventually) do the laws–and even Supreme Court opinions. 

Speaking of changes, tomorrow I’ll consider the radicalization of the Court…

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The Decline Of Seriousness

A few days ago, I posted about the idiocy of proposals made by several Republican legislators who advocate arming teachers. On Facebook, a friend who is a lawyer posted a number of points in addition to the ones I’d raised; he’s a good lawyer, and in “lawyerly” fashion, he raised the following nine questions that focused on the significant liability issues involved.

Here are his contributions to the multiple other concerns that any such effort would raise:

1) If a child gains access to the teacher’s gun and something bad happens, will the school system’s insurance cover the liability?
2) If a teacher believes use of force is needed and accidentally harms an innocent child, will the school system’s insurance cover the liability?
3) If a teacher wrongfully decided that use of force is needed, will the teacher face criminal liability?
4) Will the school system (that won’t pay for pencils) pay for the gun, ammunition, training, a trigger lock, a gun cabinet, or other necessities?
5) Will teachers be required to “register” that they have a gun?
6) What happens, in the heat of the moment, if there is a shootout between teachers, each thinking the other is the shooter?
7) How will police differentiate an armed teacher from a school shooter?
8)) Can a teacher defend himself/herself against a police officer who thinks the teacher is the shooter?
9) Will a teacher face liability for failing to use force?

Anyone who has ever practiced law–or, for that matter, sold insurance–will recognize the pertinence of these questions.

Of course, just reading my friend’s questions raises several others. Why aren’t reporters asking proponents of this stupidity to respond to these and other obvious issues? Why are lawmakers–who ask for  our votes on the basis of their presumed ability to consider the consequences of  legislation they pass and programs they fund–seemingly blind to the existence of these very foreseeable concerns? 

That was a rhetorical question; we all know the answer. They aren’t serious–not about arming teachers, and not about doing their jobs.

If it has done nothing else, this entire discussion about gun violence has vividly illustrated the vacuousness of  current American politics and the inability of our institutions–especially Congress–to address the most pressing issues facing the country. It’s true that it has put a spotlight on the clowns–the cohort of embarrassing know-nothings, bigots and nut-cases–but it has also pointed to the reason they are there: voters who, for reasons I cannot comprehend, cast ballots for them.

Marjorie Taylor Green just won her primary. She’s far from the only certifiably crazy member of Congress, just one of the loudest. Remember Paul Gosar? His siblings took out television ads warning voters that he was unfit to serve, but despite the fact that several of his brothers and sisters warned that he was mentally “off,” he won his election. I’ve never seen Jim Jordan when he wasn’t screaming something partisan and off the rails. Most people who read this blog can name a number of others, and none of them seem to make the slightest attempt at transmitting gravitas, or seriousness. They evidently think they were elected to put on a performance (preferably on Fox News) not to study and consider the pros and cons of legislation.

Today’s GOP isn’t in the business of governing; instead, its members are providing bread and circuses.

With respect to my lawyer-friend’s very foreseeable, very logical questions, I’m quite sure  these bozos have never considered any of them–they are too busy fighting a culture war and setting Americans against each other. The suggestion to arm educators is just one way among many to avoid actually thinking about the problem of mass gun violence–a glib and facile response that excuses them from doing the difficult job of thinking about the problem and devising and evaluating reasonable solutions.

Bottom line, I am SO TIRED of people who spit on a Constitution they’ve clearly never read or studied, who refuse to give taxpayers a single day’s real work for the dollars we pay them, and who spend zero time or effort considering the national interest or the common good.(They think any effort to legislate for the common good is socialism–and they’re agin it.)

And I am really, really OVER the morons who vote for them and the millions of non-voters whose absence at the polls increases the likelihood that the morons’ candidates will win.

Okay–rant concluded……See you tomorrow.

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