A Damning Critique

When a noted Constitutional scholar and a retired federal judge jointly issue a damning critique of the current Supreme Court, the particulars of that criticism are worth considering.

Lawrence Tribe and Nancy Gertner have co-authored such an essay for the Washington Post.

Tribe, as Americans who follow such matters know, is a highly respected constitutional scholar who taught at Harvard; Gertner is a retired federal judge. Both served on Biden’s Commission charged with reviewing the operations of the Supreme Court , and both now endorse the (longstanding) scholarship advocating the addition of Justices. Interestingly, they write that they entered the Commission’s deliberations with different preferences for addressing the Court’s declining legitimacy–initially, both had favored term limits but not expansion.

They changed their minds.

After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

In their essay, they explained that their vote in favor of the final report did not signal  agreement with all of it, but approval of the process, which they note accurately reflected the complexity of the issue and the diversity of views.

There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates.

In two paragraphs that sum up not just the opinions of these two experts, but–sadly–the all-too-obvious reality of where we find ourselves today, they accurately pinpoint the defects of today’s Court and the impact of those defects on efforts to remedy America’s ills.

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

The essay accuses today’s Court of operating to entrench the power of one political party  by upholding measures to constrict the vote and deny ballot access to people of color and other minorities, and by “allowing legislative district lines to be drawn that exacerbate demographic differences”–i.e., refusing to hold gerrymandering unconstitutional.  And they note that, absent intervention, a Supreme Court that “has been effectively packed”  “will remain packed into the indefinite future, with serious consequences to our democracy.”

This is a uniquely perilous moment that demands a unique response.

The concluding paragraphs are worth pondering and– if the political will can be mustered (a critical unknown)–acted upon.

Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Put simply: Judicial independence is necessary for judicial legitimacy but not sufficient. And judicial independence does not mean judicial impunity, the illusion of neutrality in the face of oppression, or a surface appearance of fairness that barely conceals the ugly reality of partisan manipulation.

Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.

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Could This Work?

A couple of weeks ago, a commenter posted a YouTube video from February of 2019, in which actress Jennifer Lawrence introduced viewers to a nonprofit organization called Represent Us.

You really need to click through and watch it, because the summary I’m about to provide is incomplete, and doesn’t do it justice.

The basic premise upon which the organization proposes to function is that mending American democracy must come at the state level–that only when we end corruption in a sufficient number of states will we be able to move the federal government and federal courts in a positive direction.

The video was made in 2019, and I haven’t heard anything about this effort in the intervening years, but according to its website, the organization remains active. It’s harder to tell whether–like so many other efforts to salvage the American Idea–it has failed to energize enough people to get the job done.

I had two competing reactions to that video.

The first was triggered by the imminent victory of the pro-fetal-life movement, which will overturn (explicitly or by eviscerating) Roe v. Wade. That will return the issue to the states, and in a “best-case” scenario, will activate a significant percentage of the 60% of Americans who want Roe retained and send an impressive number of them to their respective statehouses. If that happens–if voters in large-enough numbers are sufficiently enraged and motivated–the state-level reforms identified in the video are much more likely to occur.

That scenario is the optimistic one. But I’d be lying if I didn’t admit that my optimism is at death’s door.

Over the last few months, I’ve had multiple discussions–with my children, with friends, with former colleagues–about the state of American and global governance. Attitudes ranged from deep depression to resigned acceptance, but virtually everyone I’ve talked to believes that–as one person put it– America is over. Democracy has had its day.  Autocrats  and their fearful and tribal supporters are on the ascent worldwide.

Of course, none of this may matter in the end, thanks to our unwillingness to confront climate change when we could have moderated its effects.

It’s hard to argue with this gloomy analysis.

When I look at the collection of deranged and incompetent people serving in Congress, when I think of the millions of people who cast their 2020 vote for a man whose terrifying inadequacies and mental illness were impossible to miss, and the large numbers who still believe in the Big Lie and QAnon…when I think of the state-level lawmakers focused on protecting the “rights” of nutcases with guns but who are unwilling to protect citizens from a pandemic (not to mention the culture warriors willing to die to “own the libs”) …It’s really hard to envision a happy ending.

If any of you can talk me off the edge, I’m listening…..

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Scapegoating

Indianapolis readers of this blog may remember P.E. MacAllister, now deceased. P.E. was a local businessman/philanthropist, the sort of Republican who used to exist “back in the day”–a model citizen who placed good government above partisanship, and when a Democrat was elected Mayor, willingly worked with him on city projects.

P.E. was also a serious biblical scholar, who wrote a book called–if memory serves–The Tongue of the Serpent. It was in his book (which he graciously gifted me) that I encountered the origins of scapegoating.

Evidently, in biblical times, the inhabitants of a village would come together, and one of them would lay hands on the head of a live goat while confessing all the iniquities of the people– all their transgressions, all their sins. They would put those sins  on the head of the goat, and send it away into the wilderness.

Where is that goat when you need it…??? Ah, well….

Scapegoating, as we all know, has evolved, with various marginalized folks taking the place of the goat. It now works with other unfortunate practices, especially hate speech and disinformation, and the prevalence and impact of all of those practices has been magnified by social media.

The Brookings Institution has published a report suggesting how concerned folks might deal with these techniques of spreading online racism. The report, titled “Bystander Intervention on Social Media,” stresses the need for online interventions against the “very real threats that can grow out of online abuse,” and identifies four primary discourses for spreading racism online: stereotyping, scapegoating, allegations of reverse racism, and echo chambers.

The researchers wanted to identify effective strategies available to bystanders that might be used to combat hate speech and misinformation online. At a time when many of us feel helpless to counter the mounting threats we face–growing tribalism, the rise of autocracy, climate change, etc. etc.–it’s comforting to be told that there is actually something individuals can do about at least one of the challenges we face–online racism.

We found that people of color are being targeted by organized misinformation efforts using digital technologies. We identified four primary racist discourses that operate on social media: stereotyping, scapegoating, allegations of reverse racism, and echo chambers. For example, Trump’s March 2020 tweet involves scapegoating in that he blames Chinese people and China for the spread of coronavirus in the U.S., thereby absolving his government of responsibility. Addressing racism on social media requires understanding that users who spread racist misinformation do so differently, sometimes compounding multiple forms of racism in just one post.

The researchers identified several techniques for combating online racism, and emphasized that they aren’t equally effective.

For instance, our study reveals that education and evidence-based or content-moderated discourse are prosocial techniques. These reactions to racist posts foster dialogue in the same way that they seek to debunk racist rhetoric. On the other hand, some methods, such as callouts, ridicule, and insults, were antisocial. These methods failed to minimize the hostility amongst users or against persons of color. Therefore, Internet users who want to speak out against online racism must consider the purpose of their interactions. If they want to reduce the presence of racism on social media, they must keep in mind that certain approaches may have the opposite effect.

Effective or not, the use of  any intervention tactics was relatively rare.  Most users on the platforms analyzed by the researchers simply refrained from intervening in racist conversations entirely. Only around one in every six Twitter conversations and somewhat fewer than 40% of Reddit discussions included any bystander behavior. The authors say that needs to change.

As the article concluded:

“Silence and inaction do nothing but cause biased perpetrator behaviors to proliferate as they feel unquestioned.” This is one of the most important implications from our analysis. Targeted aggressions can have real consequences on a victim’s mental and physical health. When bystanders step in and help to make aggressions visible, disarm the situation, educate the perpetrator, and seek external reinforcement or support, these approaches provide crucial support in preventing some of the most detrimental effects. Understanding the best strategies for online bystander intervention is the first step in targeting aggression online. If we want to see a genuine change in how social media users discuss racism, we must foster a digital culture that values prosocial discourse.

Distasteful as it can be to engage with bigots, we need to take this advice seriously.

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No News Isn’t Good News

When I first retired, I began casting around for projects I might do to occupy my newly-freed-up time. (I’m still looking, btw…) My youngest son wanted me to get credentialed as a reporter and focus my efforts on Indiana’s Statehouse, which he correctly noted is a gerrymandered, far-right mixture of self-dealing, arrogance, bad policy and general nuttiness.

It is, after all, a chamber that hasn’t come all that far since passing a bill to change the value of pi.

There hasn’t been decent reporting on the shenanigans of our legislature since Mary Beth Schneider retired from the Statehouse beat, back when the Indianapolis Star at least pretended to cover state and local government.  But–although I certainly agree with my son that the lack of reporting on state government is a huge problem–I didn’t agree that I was the person to address that information deficit. (My kids don’t seem to understand just how limited my skills are, or how old and tired I am…)

That said, it appears that Indiana’s isn’t the only state legislature to be operating without scrutiny from media watchdogs, and there is a new effort to turn that around. A friend recently sent me a report from the Washington Post about a nonprofit news organization that has been formed to fill that gap.

With funding from foundations and a variety of donors, States Newsroom formed two years ago to attempt to fill a void in what many government watchdogs and civil-society experts believe is one of the biggest manifestations of the local journalism crisis: the dire shortage of reporters covering state government.

On Monday, States Newsroom will announce plans to nearly double its presence, from its current 25 states to about 40 over the next two and a half years. It will open its next five outlets in Nebraska, Alaska, Arkansas, South Carolina and Kentucky. It’s also launching “News from the States,” a new online clearinghouse to showcase all their affiliates’ reporting.

Each of the bureaus is independent,  and most are managed by veteran journalists. The average staffs consist of four or five reporters. And importantly, each bureau allows other news organizations to republish its work for free.

“State government and politics and policy have the most impact on people’s lives and it’s covered the least,” said States Newsroom director and publisher Chris Fitzsimon. “That’s really why we exist.”

The number of newspaper reporters dedicated to covering statehouses has been declining for decades, dropping by 35 percent between 2003 and 2014 and outpacing overall newspaper job losses over that time, according to Pew Research Center survey. And that was before the more recent blows to the newspaper industry, with nearly 6,000 journalism jobs and 300 newspapers vanishing between 2018 and early 2020, according to a University of North Carolina study, even before the pandemic worsened their economic picture.

Can a nonprofit media organization survive financially? That’s the zillion-dollar question.

States Newsroom raised close to $10 million dollars in 2020. In the interests of transparency, it posts a list on its website of every donor who has contributed over $500–according to the article in the Post, the list currently includes individuals, foundations, and other entities like the Google News fund and a major union of public employees. A foundation established by Wyoming-based Swiss billionaire Hansjörg Wyss, who briefly entertained joining a bid to buy Tribune Publishing Company last year, gave an early $1 million dollar donation.

As the article noted, for many years smaller newspapers relied on wire services like the Associated Press to fill their pages with the kind of statehouse reporting that they didn’t have the personnel to produce themselves. But increasingly, small newspapers can’t afford to subscribe to the AP, and as the newsrooms of better-established papers have been emptied out by their rapacious corporate owners, those news organizations have simply lacked the wherewithal to cover state legislatures.

When I visited the States Newsroom website, I noted the absence of an Indiana operation. Maybe if a number of unhappy Hoosiers contribute, we can convince the project to add Indiana to its growing list of bureaus. After all, what’s our idiotic state motto? “Honest to Goodness, Indiana?”

Well, Honest to Goodness, we need a lot more light on our Indiana lawmakers!

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Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson-– is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.

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