The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.

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Triggering Introspection

One of my favorite columnists is Charles Blow of the New York Times. I appreciate his writing for two seemingly contradictory reasons: as a Black male, he provides this White female with insights from a perspective that is alien to my own experience; on the other hand, he frequently reinforces perceptions and insights common to those of us who spend some time thinking about the human condition generally.

A recent column fell into that second category, and I hope readers will indulge me in a bit of (non-political) Sunday philosophizing.

Blow was pondering what he called the “second phase of adulthood,” which begins, in his estimation, when one’s children graduate from high school or college and leave home. (By that calculation, perhaps those of us who have watched our grandchildren leave the nest are in our third or even fourth “phase of adulthood.”)

No matter how we calculate the phases of our lives, death becomes an inescapable intrusion. As Blow notes, parents decline and die, we lose friends and relatives, and those losses change us.

This seemingly sudden intrusion of death into your life changes you. At least it is changing me. It reminds me that life is terribly fragile and short, that we are all just passing through this plane, ever so briefly. And that has impressed upon me how important it is to live boldly, bravely and openly, to embrace every part of me and celebrate it, to say and write the important things: the truth and my truth.

Blow enumerates some of the changes he is making in his “second phase”–as he says, he’s started to manage his regrets, to forgive himself for foolish mistakes and poor choices, and “to remember that we are all just human beings stumbling through this life, trying to figure it out, falling down and getting back up along the way.”

He also recognizes the need to adjust our goals and expectations. In his case, he says “When I am gone, and people remember my name, I want some of them to smile.” (That seems do-able. In my case, I’ve gone from early dreams of writing the great American novel to wanting to die with my own teeth…a more achievable goal that I regularly share with my dentist.)

I think this particular column touched me because my husband and I are in the midst of one of those inflection points we all face. We’re downsizing–we’ve sold our home, and are packing and discarding, preparing to leave flights of stairs that have become harder to climb, and tasks of home ownership that have become more onerous as we age, and we are moving into an apartment that’s all on one floor, where management will be responsible for maintenance.

Transitions of this sort–common to all of us as we age–tend to prompt introspection. Where has life taken us? How do we want to spend the years remaining? What hard-won insights, wisdom or support do we have to offer our friends and families as they confront those same questions?

Those very universal questions seem more poignant, somehow, in our very polarized country–perhaps because there seem to be so many of our countrymen who refuse to ask them, so many unhappy people unwilling to see the shared humanity of neighbors who look or worship or vote differently, so many unwilling to consider the possibility that their way might not be the only way.

Learned Hand famously said “The spirit of liberty is the spirit which is not too sure that it is right.” If there is one “marker” of maturity, one insight that comes with second–or third– phase adulthood, I think that recognition might be it.

I think Charles Blow would agree. Happy Sunday….

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Money Money Money…

When Howard Dean first demonstrated an ability to fundraise over the Internet, I was thrilled. I saw all those small donations displacing the influence of the “fat cats” upon whom political figures had long depended. As time has passed–and as I have noted in recent posts–it appeared that my enthusiasm was premature. Successful candidates who had previously granted access to lobbyists and big donors now pander to the ideologically rigid, nuance-free extremes of their parties’ bases.

Back when I ran for Congress, the conventional political wisdom about fundraising saw political contributions not just as a way to pay for expensive television and direct mail efforts, but as an indicator of support. People who could raise respectable amounts–especially if those contributions came in early in the campaign–were seen to be more viable than candidates who struggled to raise money.

As we all know, some things have changed. Television and direct mail are far less important than less-expensive social media communications, for example. Other things haven’t: the importance of name recognition (the reason “celebrity” candidates with little or no government experience have a head start), and the still-potent belief that raising lots of money means the candidate has lots of grass-roots support.

And that brings me to an interesting story from ProPublica, about how Josh Hawley and Marjorie Taylor Green “juiced” their numbers using tactics that gave them the ability to claim grassroots support, and–not so incidentally– made shadowy consultants rich.

Two of the leading Republican firebrands in Congress touted big fundraising hauls as a show of grassroots support for their high-profile stands against accepting the 2020 election results.

But new financial disclosures show that Sen. Josh Hawley, R-Mo., and Rep. Marjorie Taylor Greene, R-Ga., relied on an email marketing vendor that takes as much as 80 cents on the dollar. That means their headline-grabbing numbers were more the product of expensively soliciting hardcore Republicans than an organic groundswell of far-reaching support.

Both Hawley and Greene touted their big totals as evidence of widespread support for their extreme positions. Pro Publica’s reporters begged to differ, pointing out that both had paid unusually high sums to rent a fundraising list from a company called LGM Consulting Group, which charges as much as 80% of the funds generated through its list.

LGM appears to be the consultant of choice for crazy candidates–the company fundraises for Lauren Boebert, among other far-right “stars” and in 2020, the firm’s clients included then-Rep. Doug Collins, a Trump ally who lost the Georgia Senate primary; Madison Cawthorn, the 25-year-old congressman from North Carolina who spoke at the Jan. 6 rally; and Laura Loomer, a far-right internet personality who calls herself a “proud Islamophobe” and lost a run for a Florida congressional seat.

As the report notes, the rise of email fundraising has proved irresistible to several less-than-scrupulous marketing consultants, and has facilitated their ability to profit handsomely.

Hawley’s and Greene’s list rentals show how politicians can pad their fundraising figures — if they’re willing to pay for it. There’s scant evidence that fundraising success represents broad popular support for a politician outside the narrow slice of Americans who make political contributions, and many of the people on the rented mailing lists may not have been constituents of Hawley’s or Greene’s. Still, the money is real, and the perception of fundraising star power is its own kind of success in Washington….

Political professionals have gotten more sophisticated about efficiently converting online outrage into campaign cash. At the same time, candidates who court controversy may increasingly rely on rage-fueled online fundraising as more traditional donors freeze them out. In the aftermath of Jan. 6, Hawley lost the support of some big donors, and major companies such as AT&T and Honeywell pledged to withhold donations from lawmakers who objected to the Electoral College vote.

“The news cycle that emerges out of controversial behavior by a candidate is like a strong gust of wind, and these mechanisms like list-building are the equivalent of sails,” said Eric Wilson, a digital strategist who has advised Sen. Marco Rubio and the National Republican Senatorial Committee. “For candidates like Marjorie Taylor Greene and Josh Hawley, who have largely been shunned by traditional corporate donors who are frequently the mainstays for elected officials, especially in off years, they have no choice but to pursue grassroots fundraising. And in order for that to work, they have to continue to make more noise. It is a feedback loop in that regard.”

There doesn’t seem to be an answer to the multiple dilemmas posed by money in politics…..

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Context And Clarity

One of the great virtues of Heather Cox Richardson’s “Letters from an American” is her ability as a historian to “connect the dots” and provide context to the news of the day. That context often strips away the non-essentials that can confuse us, and provides the clarity so often missing from the reporting that follows our daily headlines.

A recent letter was triggered by Rick Scott’s angry op-ed excoriating the reaction of what he sneeringly called “woke” corporations to the Georgia election bill. Here’s where the history operates to clarify the moment in which we find ourselves:

The ideological faction that is currently in control of the Republican Party grew out of opposition to the active government both Democrats and Republicans embraced after World War II. But since Americans actually liked business regulation, a social safety net, and infrastructure projects, those Movement Conservatives who wanted to take the government back to the 1920s got little traction until 1954, when the Brown v. Board of Education decision enabled them to harness racism to their cause. With federal government efforts to end segregation in the public schools, businessmen who hated government regulation warned voters that their tax dollars were being used to give Black Americans extra benefits. It was socialism, they said, and it would encourage Black people to step out of their place.

This formula worked. Businessmen determined to cut the government bankrolled Movement Conservative candidates, and people determined not to let their tax dollars go to Black or Brown people voted for them. In 1986, Grover Norquist, a former economist for the Chamber of Commerce, brought together business people, evangelicals, and social conservatives. “Traditional Republican business groups can provide the resources,” Norquist explained, “but these groups can provide the votes.”

Richardson points out that the racist and sexist language was initially understated. That allowed supporters–including corporations concerned about their images– to wink at it.  But that was before Trump and his attack on “political correctness”–i.e., civility–brought the racism and sexism out into the open.

In the wake of Georgia’s effort to suppress minority votes and the corporate response, several observers have suggested that we are on the cusp of a realignment that would sever the longstanding relationship between  the GOP and the corporations that have previously supported and funded it. After all, they reason, Republicans may deny the reality of demographic change, but businesses cannot and will not. Corporate America has increasing numbers of minority employees–even in management–and vastly increasing numbers of minority customers. Unlike the GOP, they don’t live in an alternate reality.

It would be very satisfying if Corporate America deserted the Republican Party, but as both Paul Ogden and Richardson point out, small donors are increasingly able to replace any monies that corporations might withhold from GOP candidates.

There is a truism in politics to the effect that voters are more motivated by what they are against than by what they are for. Stirring up anger and bias are, unfortunately, timeless tactics for getting out the vote. With the niceties of “political correctness” stripped away, the departure of most moderates from the party, and the dwindling need to placate corporate and business supporters, today’s GOP is putting all of its electoral eggs in the racism basket.

And as we saw in 2020, there’s a depressingly substantial portion of the electorate responsive to that appeal.

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For Goodness Sakes, Indiana!

A couple of years ago, Indiana geniuses came up with the motto “Honest to goodness, Indiana!” After reading this scorching–and utterly accurate–description of what passes for governing in my state, I think that motto should be “For goodness sakes, Indiana!”

The article by Aaron Wren in Governing  magazine looked at the traditional Red state tactics that brought disaster to Kansas and failed to improve economies in Red states generally. When Wren focused on Indiana, he laid out the state’s current status and the roots of our declining wellbeing.

Or look at Indiana. It has had Republican governors since 2005 and full Republican control of the state for over a decade. Its leadership loves to boast that its growth rate in population and jobs beats surrounding states, but that’s a low hurdle to jump. In reality, most of Indiana is stagnating or declining. Over half of the state’s counties are losing population, and the forecast for the prime working age population is grim: Virtually the entire state is projected to have a declining workforce in coming years. Indiana’s per capita income is only 86.2 percent of the national average, and that’s lower than it was when the GOP took over the governorship and the Legislature. Under Republican management, the state started out poor and got even poorer.

Why these poor results in states with the full panoply of red state best practices? It’s because the entire philosophy of governance in Kansas, Indiana and quite a few other Republican states is based on a fundamentally mistaken view of progress. Rather than investing to build up the skills and enhance the well-being of their citizens, they engaged in a race down to the bottom as a strategy to attract corporations.

Wren doesn’t simply make an assertion–he provides examples.

When local media reported on the horrific situations faced by many local renters, Indianapolis responded by passing an ordinance that required landlords to provide tenants with a list of their rights– including the right to have “functional plumbing, safe wiring and heat in the winter.” Indiana’s legislature just overturned that ordinance, as part of the legislature’s ongoing refusal to respect local control, and–as Wren says–at the behest of the property owners’ lobby.

Indiana is a great place to be a slumlord, but not such a good place to be a citizen who rents.

The article points out that this example is just one of many.  The state’s nursing home industry has so many negatives, it has become, Wren says, “a giant scam.” He recounts how hospitals in the state used ownership of nursing facilities to overbill Medicare and siphon over a billion dollars from those homes. The money was used to fund building projects and generous salaries for hospital executives. Meanwhile, Indiana ranks 48th in nursing home staffing, and more than 20 percent of nursing home patients with COVID died (the national rate is 13 percent).

How did our legislature respond? It passed a bill providing expansive immunity from liability for nursing homes and other businesses.

In addition to overturning tenant protections, Indiana has flirted with canceling a transit expansion in Indianapolis that has been supported overwhelmingly by the voters, and gutted a bill that would have required employers to provide basic accommodations to pregnant women. (Expectant mothers can now ask for accommodations, but employers don’t have to actually provide any). Perusing the list of bills working their way through the state Legislature, it’s hard to see much that could even plausibly make a material improvement in the life of Hoosier citizens.

Wren points out that the most important factor in attracting high-wage employers is the availability of a skilled labor force – talent. What he doesn’t mention is the Indiana legislature’s continuing assault on public education, and the negative effects of that assault on efforts to produce a skilled labor force. Instead, the Republicans who have dominated state government continue to siphon dollars from public schools in favor of private, mostly religious schools via the nation’s largest voucher program.

Aaron Wren is no bleeding-heart liberal. When he lived in Indianapolis, I knew him slightly, and followed his observations on local governance. He was pro-business in the better sense of that term, supportive of governance that created a business-friendly environment, but highly critical of the crony capitalism that continues to characterize Republican politics in Indiana.

So long as Indiana’s gerrymandered districts continue to weight rural votes over urban ones, we will continue to rank among the bottom of states in numerous categories, and we’ll continue to have what the late Harrison Ullmann called “the world’s worst legislature.”

For goodness sakes, Indiana!

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