The Supreme Court Has Made Me A Liar

This week, the United States Supreme Court laid waste to 20 years of lectures I gave my students.

I used to explain the importance of stare decisis–the importance of a predictable and stable legal system based on fidelity to the rule of law. I explained that the Founders used lifetime appointments to the federal judiciary to shield judges from political pressures and allow them to engage in dispassionate evaluation of the law and facts of the cases before them. And I emphasized that–while statutes can be passed to confer and protect rights– statutes are much more easily overturned than rights secured by the Constitution.

Mitch McConnell’s Court has proven me wrong on all counts.

Stare decisis? Precedent? What are those to determined judicial ideologues? Mere minor impediments to be brushed away by finding that they’d been wrongly decided and followed.

What about those lifetime appointments? Thanks to a Senate dominated by politicians determined to appoint political cronies, those lifetime appointments have become protection against removal–giving  Justices who have clearly subordinated ethics and dispassionate evaluation to political ideology free reign to wreak havoc with the rule of law.

it was appalling enough when the religious tribunal that constitutes today’s Supreme Court majority overruled Roe v. Wade –a fifty-year precedent–using language that clearly signaled the coming of an all-out assault on other rights. That decision followed a victory by the gun lobby that overturned a New York statute that had been in place for over 100 years, and was equally dismissive of the plain language of Justice Scalia’s decision in Heller.

As if the case from Maine requiring vouchers to be spent at religious schools wasn’t a clear enough message that the majority was coming for the Establishment Clause, the Court drove that message home: the tribunal ruled that a public school corporation must allow a football coach to deliver performative prayers on the football field’s 50-yard line–a clear endorsement of religion, and a radical departure from over 100 years of First Amendment jurisprudence. That decision created a hole in Jefferson’s “Wall of Separation” big enough for the Christian Taliban to drive through, and arguably put prayer back in the nation’s public schools.

(More solicitude for religion: the Court ruled that Texas would violate religious freedom if it executed a death row inmate without allowing his pastor to touch him and pray aloud with him. Evidently, killing him didn’t pose any religious problem–or constitute a “pro life” inconsistency…)

But this radical Court didn’t stop with those UTurns in the law. Yesterday, it eviscerated   the ability of the EPA to act on urgent environmental threats–again, despite precedents to the the contrary. In yet another 6-3 decision, the Court limited the Environmental Protection Agency’s authority to set standards on climate-changing greenhouse gas emissions for existing power plants. A Guardian editorial said the ruling “means it may now be mathematically impossible through available avenues for the US to achieve its greenhouse gas emissions goal.”

Evidently, these Justices don’t have grandchildren who will have to live in a society upended –or possibly just ended–by climate change.

There were other, less publicized offenses against the rule of law.

Wednesday, the Court dramatically increased the power of states over Native American tribes. That result –a win for Republican officials in Oklahoma–required ignoring the Court’s own 2020 ruling that had recognized an expanded tribal authority. (That particular affront was too much even for Justice Gorsuch, who–for once–departed from the lockstep radical majority.)

In another 6-3 case demonstrating the selective nature of the majority’s concern for life (the concern apparently evaporates at birth) the court found that the Biden administration’s vaccine-or-testing mandate for large employers was not lawful.

The New York Times has a rundown of this appalling session, with additional cases.

This recitation brings me to my final error: telling my students that constitutionally protected rights are more stable than rights protected only by statutes.

Congress can–and must–codify the rights this illegitimate Court has trampled, as well as those it is clearly threatening. It also needs to add Justices chosen by a President who actually won the popular vote. But in order to do those things and take other critical steps, Democrats must win in November, and they must win control of the Senate in sufficient numbers to make Joe Manchin and Kyrsten Sinema irrelevant.

Off-year elections almost always favor the party that doesn’t control the White House. If the GOP wins even one house of Congress this year, it is not hyperbole to say that the Constitution and Bill of Rights are effectively over. Neutered. Irrelevant.

Vote Blue no matter what. We can argue about gas prices after we save the Republic.

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Fact, Analysis, Opinion

I’ve repeatedly used this platform to complain about the deficits of what have been called “ghost” newspapers, like the remnants of our local Indianapolis Star. Unlike the 2000+ papers that have simply disappeared over the past several years, ghost papers still exist, but in a form that is no longer adequate to the needs of the community. Here in Indianapolis, the Star (never a particularly good newspaper) no longer bothers to inform the public about the various agencies of local or state government; it devotes its reduced reporting resources mainly to sports and entertainment, with occasional forays into “human interest” stories. As a result, significantly fewer people look to the Star as a common source of information for residents of central Indiana.

(I’m happy to note that the Star’s deficiency has sparked creation of a new nonprofit covering the Statehouse: the Indiana Capital Chronicle. May they prosper!)

The loss of local newspapers hasn’t just deprived us of local news. It has also deprived us of analyses of that news, columns and letters to the editor expressing a variety of opinions over the meaning and significance of the matters being conveyed.

The Star is a Gannett paper (which explains a lot about its sorry state), and it turns out that Gannett isn’t simply uninterested in providing local communities with needed information.A reader recently sent me a column (snatched from behind a paywall) outlining Gannett’s recent decision to minimize inclusion of analysis and opinion.

Gannett, America’s largest newspaper chain, recently recommended changes to its affiliates’ opinion pages. There will be fewer syndicated columnists and letters to the editor and no more editorials that, in Gannett’s words, “tell voters what to think.” Gannett’s directive noted that editorials and opinion columns are among the most frequent reasons that readers give for canceling their subscriptions, and many of the chain’s opinion pages across the country are poised to cut back production or fold up shop in response.

It is certainly the case that devoting editorial pages to opinions focused on national events adds to our current American polarization. But as the writer noted, space devoted to opinions on local matters has the opposite effect–it brings readers’ attention back to the local community and strengthens local connections. He insists–I believe correctly–that Gannett and other newspaper owners should “reinvest in what makes an opinion page work: amplifying local voices, presenting a diverse array of opinions in a respectful way, and serving as their community’s public forum.”

A local newspaper’s main advantage in today’s sprawling media marketplace is its geographic focus: Nobody covers a community as thoroughly as its newspaper, even today. The opinion page is an essential part of that coverage because it seeks out and organizes a diverse array of community perspectives. It is the least “professional” part of the newspaper: a place where you can learn about the issues facing neighbors, community leaders, and elected officials in their own words. Unlike the neighborhood Facebook and NextDoor groups that so often fill in local news deserts, where the brashest and most extreme voices rise to the top, an opinion page is edited according to journalistic ethical standards of fairness, accuracy, and fact-checking.

Opinion columns and vetted letters to the editor aren’t the sort of “opinions” that litter Facebook and Twitter–posts that are all too often little more than insults and/or invective.

Good opinion writing is analytical–it is based upon the factual reporting, but goes beyond the surface to explore the significance of the reported facts and opine about their likely meaning and possible consequences. Opinion writers almost always come with a bias or point of view, and good opinion writers are explicit about their ideological commitments, but they also come with background in the subject-matter that allows them to illuminate what the bare recitation of “who what where when and why” cannot.

There’s a reason they are sometimes called “think pieces.”

The author of the column from which I’ve pulled these quotes–a journalism professor–points out that effective columnists are trained in the art of observation. And as he says, a talent for connecting storytelling with current events makes an impression on readers that the bare recitation of facts usually doesn’t.

Studies show that op-eds can have enduring persuasive effects — a rare finding in studies of the media — and can set the political agenda for citizens and elected officials alike. Local columnists can use their reputation and intellectual freedom to explore deep, complex, and oft-ignored community histories or serve as respected watchdogs to protect consumers and citizens.

The evisceration or outright loss of local newspapers over the past couple of decades has deprived us of a critically important asset–a forum informing us about our local government, business and community–and now, of informed opinion probing their significance.

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Speaking Of America’s Decline…

As long as we’re talking about the decline of America’s political life, let’s talk about Herschel Walker– a human representation of that decline.

Walker–for those unfamiliar with him, as I happily was until recently–is the Republican candidate for Senate in Georgia. His nomination owes much to America’s obsessions with both sports and celebrity; he was evidently once a good football player.

At least he was good at something…

I can’t describe Walker any better than The New Republic.which headlined the linked story with a question: Is Herschel Walker Running to be the Senate’s Dumbest Liar?

Last month, the two-time All-Pro running back from the University of Georgia won the Peach State’s Republican Senate primary. A rabid right-winger, Walker has fully backed Trump’s claims that the 2020 election was stolen, going as far as to say that Joe Biden didn’t get “50 million votes.” (Biden received more than 80 million.) He has urged revotes in a number of close states, including Arizona, Pennsylvania, and his home state. In chilling fashion, he called on Trump to conduct a “cleansing” of the country in the days leading up to Biden’s inauguration.

Walker is, even by recent GOP standards, an absolute firehose of lies. He’s also, to put it bluntly, absolutely godawful at lying. His deceptions seem to arrive in the news pre-collapsed—they are easily uncovered and incredibly numerous; his falsehoods have been repeatedly revealed over the last several months. At this point the “False Statements” section of his Wikipedia page is longer than the one recounting his ongoing campaign to be Georgia’s next senator.

The article enumerates a number of the lies Walker has peddled. For example, he has boasted that he was proprietor of a food service business that was a “mini–Tyson Foods,” claiming that it employed more than 100 people and generated nearly $100 million in sales. The Atlanta Journal-Constitution reported that the company’s profits were less than $2 million; that Walker didn’t own or run it, but had simply licensed his name to the business; and it had only eight employees.

In February, meanwhile, Walker boasted that “I still have about 250 people that sew drapery and bedspreads for me.” That sounds impressive! There’s just one problem: It isn’t. While Walker has claimed on his website that “[Herschel Walker Enterprises] and Renaissance Hospitality provides major hotels, restaurants and hospitals with custom fabric bedding, drapery and window treatments,” the truth is that Renaissance Hospitality doesn’t exist anymore—it dissolved a year ago. Moreover, Walker didn’t even own the business—a friend did.

There’s lots more. On several occasions, Walker claimed to have worked in law enforcement, although he never did. He has repeatedly railed against single-parent families, especially absent Black fathers.  Small  problem: The Daily Beast initially revealed that Walker has a son, now 10 years old, whom he never sees, and subsequently found others–there are (at least) three children for whom Walker is an absentee father

The portrait that emerges is a pretty simple one: The guy is a liar and a dummy. Walker spouts off in interviews and the campaign trail, inflates his successes, and makes bold claims that are comically easy to disprove. His campaign occasionally acknowledges them or tries to walk them back—it acknowledged the parentage of his son, for instance—but Walker has managed, either by wit or by accident, to keep following the Trump North Star, charging forward, headlong into the next incident. This candidacy is ultimately a test of how much Trump broke our politics—and how much a lesser facsimile of the former president can lie again and again and still succeed in American politics. Perhaps our politics are sturdy enough to survive it. It’s still no fun watching voters have to stomach this sort of stupidity and deceit.

If Walker was just a one-off, that would be dispiriting enough; he is, after all, the nominee of a major party for the Senate of the United States. But he has lots of company. (And let’s be clear, virtually all of the bumbling, moronic, ego-driven narcissists who embarrass America daily come from the once-Grand Old Party. Marjorie Taylor Green, Louie Gohmert, Paul Gosar, Lauren Boebert…In the Senate, you have Tommy Tuberville (who didn’t know there were three branches of government), James Inhofe…and those are just the ones who come immediately to mind.)

Dick Lugar is spinning in his grave.

How did American politics descend from debates over the common good and sound policy–from issues of governance–to today’s version of “let’s make a deal.”? When did celebrity come to be more important than competence, anger and bile more important than intellect, self-aggrandizing bluster more important than verifiable truth?

For those of us who are worried that the country is in decline, the rise of the idiocracy is compelling–albeit depressing– evidence.

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Let Me Explain This One More Time…

I see that Tucker Carlson has applauded the demise of Roe v. Wade, and characterized the decision as a “return to democracy.” Evidently, someone needs to explain America’s approach to democratic self-rule to Tucker and his constitutionally-illiterate audience.

Democratic systems can take several forms. In a “pure” democracy, where an unrestrained majority rules, voters participate in all government decision-making; the majority is even able to decide who has the right to vote. (I’m unaware of any country with so “pure” a democracy, for obvious reasons.)

America’s Founders didn’t choose that system. (For one thing, their concerns about the “passions of the majority” were well-known.) Instead, they crafted a republic in which voters would choose lawmakers from among the ranks of the thoughtful and knowledgable (!!), and those lawmakers would debate the merits of legislative proposals, negotiate and compromise among the various points of view, and pass well-considered laws.

Then they constrained those lawmakers by enacting a Bill of Rights.

The Bill of Rights–as I have often explained in these posts–is essentially a list of things that American government is forbidden to do, even when a majority of voters approve. Thanks to the Bill of Rights, government cannot censor our communications. It cannot prescribe our prayers (although after the Court’s most recent ruling, it can evidently coerce them) or dictate our reading materials. It cannot search or seize us without probable cause.  It cannot invade our liberties or take our property without due process of law.

Let me reiterate that, for the edification of any Fox viewers who might be lurking: the Bill of Rights limits what popular majorities can authorize government to do. It is a limitation on majority rule–on what the Tucker Carlsons of this world conceive of as democracy. It protects the right of individuals to choose their own political and religious beliefs and follow their own life goals, their own telos, free of government–or majority– interference.

Over the years, the Court has had to interpret the operation of the Bill of Rights–to apply its broad principles and protections to specific situations. Since the 1960s and until this week, the Court has recognized a right to privacy, and has drawn a line between decisions that government can properly make, and those that must be left to the individual. It has based that line on citizens’ right to due process.

There are two kinds of due process: procedural and substantive. Substantive due process (often called the right to privacy) is the doctrine that requires official respect for individual autonomy–the doctrine that forbids government from making decisions that are none of government’s business, “intimate” decisions that under longstanding understandings of the Bill of Rights must be left up to the individual involved.

The existence of that line protecting individual liberty from government interference rests on multiple precedents interpreting the 14th Amendment’s Due Process Clause. 

If the doctrine of substantive due process goes away, those “democratic” state governments so beloved by Tucker Carlson will have the right to prohibit same-sex or interracial marriage, re-criminalize sodomy, and ban the sale and use of birth control…All of those rights and others are in the cross-hairs so long as Republicans can keep their stranglehold on American government via gerrymandering, the Electoral College and other mechanisms  (mechanisms that are all, ironically, exceedingly anti-democratic). 

The decision overturning Roe was deeply dishonest, especially in its discussion about  whether a particular right was historically recognized, but Alito’s distorted history is ultimately irrelevant– a red herring. In order to find that the government has a right to control the reproductive decisions of individual women, the Court had to fatally undermine the doctrine of substantive due process. And when that doctrine is no longer viable, all other personal rights are vulnerable.

Clarence Thomas may have been the only Justice willing to admit to the obvious agenda of this rogue Court, but it is abundantly clear that the other four members of the religious tribunal that now controls the Court share that agenda.

Debates about abortion have always been both superficial and dishonest. “Pro life” has always been a misnomer, since anti-choice policy is blatantly indifferent to the lives of women (and to the lives and welfare of fetuses once they become children). But there needs to be far more recognition that this decision isn’t simply an endorsement of the right of state governments\ to make very bad policy decisions–it is an endorsement of autocracy, of the right of government to invade the most personal precincts of citizens’ lives, and to impose the religious views of those in power on those of us without.

Giving legislators the right to make my most intimate decisions isn’t the Founders’ view of “democracy”– and it sure as hell isn’t mine.

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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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