Category Archives: History

More from Ezra Klein on Reforming the Supreme Court

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Last week I shared most of Ezra Klein’s article about the Supreme Court and the way today’s politics is more about power than norms. He revisited the topic this week. Here’s most of what he wrote:

Late in the lead-up to the 2020 presidential election, as Mitch McConnell rushed to replace Ruth Bader Ginsburg with Amy Coney Barrett, the left began pushing Joe Biden to endorse adding seats to the Supreme Court. Biden, in response, did what politicians do when faced with an issue they don’t want to think about: He promised to create a commission to study the issue.

That commission submitted its report in December 2021, and as far as I can tell, Biden’s lack of interest has been confirmed. For all the fury at the Supreme Court in recent weeks, the Biden administration doesn’t seem to have mentioned the report or any of the options it raised. Perhaps that’s just an admission of political reality. Democrats don’t have the votes to change the court.

But the Biden administration needs to change political reality, not just accept it….. One such [response] might be a plan to repair the court — one that goes beyond restoring Roe v. Wade and demonstrates a deeper vision for reimagining America’s political system in an era of crisis….

The commission’s report doesn’t endorse any particular plan. Instead, over nearly 300 pages, it considers several plans and airs the arguments for and against them. At times it’s pathologically evenhanded, bordering on naĂŻve….But in total, the report is a thorough … tour through ways the court could be restructured….

In Federalist No. 78, Alexander Hamilton wrote that the judiciary has “… neither FORCE nor WILL, but merely judgment”. The debate over the Supreme Court tends to revolve around the word “legitimacy.” The fear is that the court will lose its legitimacy, whatever that means. But the word Hamilton uses is more interesting: judgment.

I take the problem with the current Supreme Court to be that there’s no reason to trust its judgment, and many reasons to mistrust it. The process for picking appointees is thoroughly politicized. The process by which seats come open and the court is refreshed is thoroughly politicized, save when death intervenes with a justice’s preferred moment of retirement. Critical cases are decided again and again on party-line votes, making a hash of the idea that the court speaks as an institution, on behalf of the Constitution, rather than as nine ideologically predictable political appointees.

As I argued last week, the court — like the rest of our political system — wasn’t designed for an era of polarized political parties. It is supposed to be a check on the other branches, not an amplifier of the power the parties wield across them. Its problem is a mismatch between the political system for which it was designed and the political system we actually have. And so the question is, what might the court look like if it were designed for this era? What reforms would make the court’s judgment more, rather than less, trustworthy?

In my view, court packing, the idea that arguably launched the commission, fails that test…. You can’t fix the court by adding justices. You’re shifting the balance of power by contributing to the underlying problem: turning the court into an untrustworthy institution and setting off a cycle of reprisals with unknown consequences…. [Note: I disagree. This is an emergency. If the Democrats in Washington wanted to, they could add four justices to match the number of federal circuit courts. There used to be nine circuits. Now there are thirteen. Then let the Democrats propose a way to make the court more balanced in the future. See below.]

Let’s start with the easy one: term limits. Lifetime appointment did not mean, for most of American history, what it means today. The commission notes that until the 1960s, the average length of service on the court was 15 years. Now it’s 26 years — and perhaps rising. As the partisan stakes of Supreme Court nominations have sharpened, life span has become one more variable to game: Parties are looking for the youngest justices they can credibly pick in order to ensure their nominees hold power far into the future.

Worse, because justices retire strategically, power in the court now builds power in the court later. As the commission notes, Trump “appointed three Justices in his single four-year term; his immediate Democratic predecessors, Presidents Barack Obama, Bill Clinton, and Jimmy Carter, made only four appointments total in a combined twenty years in office.” Lifetime appointments were intended to insulate the justices from politics. Instead, they have become a driver of the court’s politicization.

Limiting justices to 18-year terms has collected a fair amount of bipartisan support over the years…. When the National Constitution Center convened separate groups of liberal and conservative legal scholars to consider court reform, both ended up proposing 18-year terms. It also has the force of international practice behind it. This, from the report, is worth reflecting on:

The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices….  In light of this contrast, one scholar who testified before the Commission opined that, “were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.”

… Eighteen-year terms would mean, over time, that presidents could expect two appointments per term. A two-term presidency would see four appointments — … enough to make sure the court doesn’t fall too far out of step with the American people. It would also lower the stakes on any one vacancy or any one decision, because vacancies would become predictable and commonplace.

But there’s also a need to depoliticize the court and protect it from politics. It now seems unlikely that vacant seats can ever be filled when the White House and the Senate are controlled by opposing parties … [No, the evidence is that would only happen if Republicans controlled the Senate, like they did in 2015. As Mr. Klein adds parenthetically…] (In case you thought Merrick Garland a one-off, McConnell has already said it’s “highly unlikely” he’d let Biden fill a Supreme Court seat if Republicans retake the Senate in 2022.)

But the commission has an interesting idea for that. If the Senate fails to act on, or otherwise confirm, two Supreme Court nominees in a set amount of time, the deadlock could trigger a new process in which the chief judges of the federal Courts of Appeals would vote on the next nominee….

More radical is the idea for a “balanced bench.” The commission does not discuss this idea at any length… The balanced bench is a proposal by Daniel Epps and Ganesh Sitaraman, both law professors, to divvy up Supreme Court seats in a new way: Both parties would get five justices, and then those 10 justices would be called upon to unanimously or near-unanimously agree on another five justices.

The merits of the balanced bench proposal are perfectly, if accidentally, encapsulated in the commission’s critique of the idea:

An explicit requirement that Justices be affiliated with particular parties would constrain the pool of potential nominees and reinforce the notion that Justices are partisan actors….This close identification of Justices with political party could undermine the perception of judicial independence, which is important to the acceptance of and compliance with the Court’s decisions.

Yes, it would be a shame to reinforce the accurate perception that Supreme Court nominees, chosen by political parties, extensively vetted for ideological reliability, might be, on some level, partisan actors. [This is] extraordinary: Even if it is true that the justices have “ideological motivations,” we must act like it isn’t true, because an accurate understanding of the judiciary might undermine “acceptance of and compliance with” its decisions.

This is an argument for denial, when what we require is a reckoning…. A central question in any political system is how to balance power so all sides have an interest in the system’s continued success. The problem in our system is that we are balancing the power of places rather than parties. The framers believed the politics of states would structure our politics. “Many considerations 
 seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States,” wrote James Madison in Federalist No. 46. And so the Senate balances the power of states equally, and the [Electoral College] gives rural areas a boost in political representation.

But the framers were wrong. Political parties are our primary political attachments, and that’s been true for decades. Perhaps the Supreme Court should be a place that balances their power rather than another venue through which they compete for dominance.

Taking parties seriously means recognizing who is left out by party competition, too. Many Americans … find themselves utterly unrepresented by the current nominations process. There should be a path to the Supreme Court that does not rely on proving yourself a loyal foot soldier, decade after decade, to the party likeliest to sponsor you, a path that relies on building the best reputation for judgment among peers of all political persuasions. The “balanced bench” idea would create that path, too…. The proposal is a provocative sketch rather than a fully worked-through plan. But provocations are what we need.

We treat the creaking, cracking structure of American government with a strange mix of awe and fatalism; either we think it somehow heretical to question, or we’re so pessimistic about the prospect of change that we don’t even bother. But to dive into the history of court reform, as the commission does, is to be reminded that the Supreme Court was imagined by human minds, and made and remade by human hands. We honor the idea of the American experiment, but we have lost the spirit of experimentation that made it work. We did not discover the ideal structure for the Supreme Court, once and for all, in 1869 [when the number of justices was set to nine]. Our forerunners did their best for the times in which they lived. It is time we did ours.

What Is Neoliberalism? It’s Market Fundamentalism

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Neoliberalism has had a titanic effect on the world, but it’s the worst-named political-economic doctrine there is. Robert Kuttner explains neoliberalism at length below (you can read the even longer original for free if you register at the New York Review of Books):

Beginning with the presidency of Jimmy Carter, a succession of Democratic presidents joined Republicans in turning away from the New Deal model of regulated capitalism toward what has come to be known as “neoliberalism”. The neoliberal credo claims that markets work efficiently and that government attempts to constrain them via regulation and public spending invariably fail, backfire, or are corrupted by politics. As public policy, neoliberalism has relied on deregulation, privatization, weakened trade unions, less progressive taxation, and new trade rules to reduce the capacity of national governments to manage capitalism. These shifts have resulted in widening inequality, diminished economic security, and reduced confidence in the ability of government to aid its citizens.

The Republican embrace of this doctrine is hardly surprising. Given the lessons learned about the necessity of government interventions following the 1929 stock market collapse and the success of the Roosevelt administration as a model for the Democratic Party, the allure of neoliberalism to many Democrats is a puzzle worth exploring.

The term “neoliberalism” itself is confusing, because for at least a century “liberalism” in the United States has meant moderate left, not free-market right.

Neoliberalism in its current economic sense draws on the older meaning of “liberalism”, which is still common in Europe and which holds that free markets are the counterpart of a free and democratic society. That was the claim of classical liberals like Adam Smith and Thomas Jefferson.

Only in the twentieth century, after the excesses of robber-baron capitalism, did modern liberals begin supporting extensive government intervention—the use of “Hamiltonian means” to carry out “Jeffersonian ends,” in the 1909 formulation of Herbert Croly, one of the founders of The New Republic.

This view defined the ideology of both presidents Roosevelt and was reinforced by the economics of John Maynard Keynes. In Britain, the counterpart in the same era was the “radical liberalism” of social reform put forth by the Liberal prime minister David Lloyd George.

The term “neoliberalism also gets muddled because some on the left use it as an all-purpose put-down of conservatism—to the point where one might wonder whether it is just an annoying buzzword. But neoliberalism does have a precise and useful meaning, as a reversion to the verities of classical economics, with government as guardian of unregulated markets.

In his new book, The Rise and Fall of the Neoliberal Order, Gary Gerstle, an American historian, … argues that neoliberalism needs to be understood as a “political order,” which he defines as an era in which a certain set of ideas and policies have become politically hegemonic. “A key attribute of a political order is the ability of its ideologically dominant party to bend the opposition party to its will,” he writes. “Thus, the Republican Party of Dwight D. Eisenhower acquiesced to the core principles of the New Deal order,” just as “the Democratic Party of Bill Clinton accepted the central principles of the neoliberal order in the 1990s.” Gerstle’s lens helps us appreciate the self-reinforcing power of neoliberalism. As government became a less dependable source of economic security, people were made to feel that they were on their own, thus internalizing an individualist rather than collectivist view of citizen and society.

What differentiates neoliberalism from the older ideal of laissez-faire is the recognition that a free market will not reemerge if the government simply gets out of the way. The neoliberal perspective, as first articulated in the 1930s by the Austrian economist Friedrich Hayek and by Henry Simons of the University of Chicago, holds that if we want entrepreneurs, financiers, and ordinary citizens to be liberated from state regulation, strong government rules must protect the market from the state. Milton Friedman, in a 1951 essay titled “Neo-Liberalism and Its Prospects,” agreed that this project went well beyond laissez-faire. Gerstle writes, “This strategy was built on a paradox: namely, that government intervention was necessary to free individuals from the encroachments of government.” The historian Quinn Slobodian, in his authoritative intellectual history of neoliberalism, Globalists (2018), goes further: “The neoliberal project was focused on designing institutions—not to liberate markets but to encase them, to inoculate capitalism against the threat of democracy.”

Leftist theorists had long appreciated the role of the state in defining the market. As Karl Polanyi famously wrote, relishing the paradox, “laissez-faire was planned.” And indeed it was. To function at all, even “free” markets require extensive rules defining property itself, the terms of credit and debt, contracts, corporations, bankruptcy, rights and obligations of labor, and so on. The difference between the New Deal or social-democratic view of markets and the neoliberal ideal is that progressives want the government’s rules to act as democratic counterweights to the abuses of capitalism, while neoliberals want them to protect market freedoms. But both accept that capitalism requires rules.

As a dissenting remnant of pre-Keynesian economics, neoliberalism languished until the New Deal model faltered in the 1970s with the improbable combination of inflation and stagnation [“stagflation”]. Classical economic liberals like Friedman, who had been politically marginal, got a fresh hearing. Carter, never much of a Roosevelt liberal and facing political fallout from stagflation, hoped that deregulation and market competition might restrain prices. Reduced government intervention was congenial to the business elites who were again ascendant during the Reagan presidency. Neoliberalism became the ideological underpinning of a relentless turning away from a managed form of capitalism.

Gerstle explains how the cultural left also found the libertarian and antibureaucratic aspects of neoliberalism appealing, weakening the New Deal order and its political coalition in yet another way. In the culture wars of the 1960s, the New Left rejected corporate cold war liberalism and unresponsive big government in favor of a wished-for “participatory democracy.” Some of this entailed challenging public institutions. “Both left and right … shared a deep conviction,” Gerstle writes, that the bureaucratized system “was suffocating the human spirit.” A few years later, Ralph Nader became convinced that several regulatory agencies had become hopelessly captured by the industries that they regulated and helped persuade Carter that the remedy was deregulation.

Despite neoliberals’ embrace of economic liberties, they can be cavalier about political liberties. As theorists such as Isaiah Berlin appreciated, people depend on positive as well as negative rights. The freedom to get an education or receive medical care regardless of one’s income exists in the realm of citizenship. These are freedoms that markets don’t provide and that proponents of neoliberalism ignore….

Neoliberalism not only protects the market from the regulatory state; more radically, it expands market principles to realms thought to be partially social. Whereas Polanyi, for instance, warned about the tendency of a market society to relentlessly “commodify” social relations, neoliberal theorists embrace this as a virtue, arguing that market measures can be efficiently applied to value everything from human life to the environment.

In the neoliberal view, labor is better understood as “human capital,” a concept associated with Friedman’s University of Chicago colleague Gary Becker. According to Becker, markets pay workers precisely what they deserve, even though in some cases wages are insufficient to sustain a decent life. Conversely, even rapacious billionaires merit their earnings, by definition, because markets are presumed perfectly efficient when protected from government interference.

In the absence of counterweights such as government regulation and strong unions, these dynamics become more intense over time. Since labor is just another commodity, production can be offshored to countries where it is cheapest. More recently, with computer-aided innovations such as ride-sharing platforms like Uber, delivery services such as Instacart, and odd-jobs bidding sites like TaskRabbit, workers compete directly against one another as vendors in an open marketplace while being monitored minute by minute for efficiency. This was the sort of pure “spot market” in labor celebrated by Friedman and abhorred by Karl Marx.

Corporations, though creations of the democratic state, are said by neoliberal theorists to have no reciprocal responsibility to communities or employees, only to shareholders. Public education is not a public good but another marketplace with mechanisms such as vouchers, which give families money toward tuition at the school of their choice. In health care, cost disciplines are deemed to operate best with the use of market incentives and for-profit vendors. Retirement income is better served by private accounts rather than by public social security. Environmental goals are to be achieved with marketlike measures, such as auctioning the right to pollute, not “command and control” regulation. Taxation rates should be low and consistent across all income levels, rather than redistributive. Antitrust enforcement is gratuitous and even perverse, because markets police themselves through supply and demand.

Government’s role should be largely reduced to maintaining physical security and protecting markets from state interference—the “night-watchman state.”

This has indeed been the dominant set of beliefs behind the policies of the past four decades. Was it a success or a failure? That depends on who you are. For economic elites and the Republican Party, it has been a splendid success. For the Democratic Party, the neoliberal order has been a catastrophe, eviscerating the core claim of progressives since FDR that government can serve the common people. Neoliberalism has thus been both antidemocratic and anti-Democratic.

As economic policy, neoliberalism largely failed to improve economic performance. Growth rates were far higher between the 1940s and early 1970s, when the economy was governed by principles of managed capitalism. However, neoliberal policies did drastically increase income inequality, with virtually all economic growth benefiting the top few percent, while earnings and job security for most people stagnated or declined.

With concentrated wealth came concentrated political power to promote even more neoliberalism, as countervailing institutions such as labor unions were weakened and direct public programs like Medicare were partly privatized.

Notwithstanding the ubiquity of computers during the neoliberal era, productivity growth has been no better than it was in the postwar period. Health insurance became more costly and less reliable as both insurance companies and hospitals were increasingly transformed into for-profit institutions, avoiding unprofitable patients. Retirement security was weakened, as guaranteed pensions were shed by corporations in favor of marketized 401(k) accounts that shifted all the risk and most of the cost to workers. The deregulation of financial markets led to innovations, but they mainly served speculation by insiders and resulted in the financial collapse of 2008….

Why, then, did Democratic presidents embrace an economic credo that annihilated their own public philosophy and its appeal to the electorate? As Gerstle recounts, it was Bill Clinton who turned the Democrats to full-on neoliberalism. Clinton, who had been attracted to the New Left in his youth, began as more of an economic progressive, espousing New Deal–scale programs such as universal health insurance. The early Clinton presidency was a tug-of-war between more left-wing advisers … and free-market conservatives…

But Clinton was unable to get major progressive legislation through Congress, and Republicans became the congressional majority after 1994. A centerpiece of Clinton’s early program was NAFTA, a “free trade” initiative…. Clinton also made common cause with Republicans in Congress to “end welfare as we know it,” repealing the New Deal’s Aid to Families with Dependent Children program in favor of a stingier and more punitive alternative….. Budget balance, a core neoliberal principle, became an article of faith for Clinton….Federal spending [was reduced] to its lowest share of GDP in decades.

Gerstle characterizes these shifts as mainly opportunistic, and he’s not wrong. Neoliberalism also allowed Democrats to compete with Republicans for business support and campaign money. By the end of his two terms, Clinton … had sponsored more financial deregulation than Reagan or Bush, allowing the growth in speculative credit derivatives and subprime mortgages that set the economy up for a crash. Clinton also made budget balance the centerpiece of his economic program, at the expense of social spending and needed fiscal stimulus. Obama then pursued deficit reduction instead of economic recovery in 2010, when unemployment was still far too high….. As Gerstle observes, Obama was “a captive of the moment
. Obama would also prove captive to his own inexperience and resulting caution”….

The book’s lack of attention to globalization as both emblem and vector of neoliberalism [is a problem]…. The era between Roosevelt and Reagan was one in which capitalism was substantially national. This was a deliberate legacy of the Bretton Woods system, which was established in 1944 and provided for fixed exchange rates and controls on the movement of private capital. Those rules made it more feasible to regulate capitalism …because capitalists could not do an end run around the nation-state… Governments could pursue full employment without pressure from financial markets to pursue austerity—the favorite neoliberal remedy for loss of investor confidence….

In the 1980s and 1990s, … “hyper-globalization” became an important neoliberal instrument for weakening the nation-state in favor of a global market that would be much more difficult to control..Many forms of financial regulation were defined as improper barriers to free trade….

With the Biden presidency, we have seen a welcome turning away from neoliberal ideas more generally. His administration has sought to move back to something closer to the New Deal, with greater public investment, more regulation, progressive taxation, skepticism about free trade, and increased support for labor unions. But unlike FDR and LBJ, Biden does not have a working legislative majority. [There are other] obstacles to Biden’s success: the climate calamity, racial divisions that the right deftly exploits, the lingering political power of liberated finance, the continuing appeal of T____ism, and a gridlocked Congress.

Gerstle’s title refers to the “fall” of neoliberalism. But … that characterization may be premature. Neoliberalism has indeed been discredited, as both theory and practice…. Yet because of the residual power of financial elites and their intellectual allies, the appeal of market fundamentalism is far from dead.

This political moment is not necessarily a turning point. It could be an inconclusive stalemate that will produce even more mass disaffection from democratic government and politics (and from the Democratic Party), along with more support for autocrats. As the Italian Marxist Antonio Gramsci wrote of an earlier period, “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.”

An Expert on Civil War Predicts We Have Insurgency in Our Future

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Wikipedia quotes this definition of ”insurgency”:

A violent, armed rebellion against authority waged by small, lightly armed bands who practice guerrilla warfare from primarily rural base areas. The key descriptive feature of insurgency is its asymmetric nature: small irregular forces face a large, well-equipped, regular military force state adversary.

This is part of an interview from March in The Washington Post:

Barbara F. Walter is a political science professor at the University of California at San Diego and the author of How Civil Wars Start: And How to Stop Them….

We we actually know a lot about civil wars — how they start, how long they last, why they’re so hard to resolve, how you end them. And we know a lot because since 1946, there have been over 200 major armed conflicts. And for the last 30 years, people have been collecting a lot of data, analyzing the data, looking at patterns. I’ve been one of those people.

We went from thinking, even as late as the 1980s, that every one of these was unique. …Then methods and computers got better, and people like me came and could collect data and analyze it. And what we saw is that there are lots of patterns at the macro level.

In 1994, the [CIA] put together this Political Instability Task Force. They were interested in trying to predict what countries around the world were going to become unstable, potentially fall apart, experience political violence and civil war.

Originally, {our] model included over 30 different factors, like poverty, income inequality, how diverse religiously or ethnically a country was. But only two factors came out again and again as highly predictive. And it wasn’t what people were expecting, even on the task force. We were surprised.

The first was this variable called anocracy. There’s this nonprofit based in Virginia called the Center for Systemic Peace. And every year it measures all sorts of things [to decide] how autocratic or how democratic a country is…. Negative 10 is the most authoritarian, so think about North Korea, Saudi Arabia, Bahrain. Positive 10 are the most democratic, [like]  Denmark, Switzerland, Canada. The U.S. was a positive 10 for many, many years…. The U.S. was briefly downgraded to a 5 and is now an 8.

And what scholars found was that this anocracy variable was really predictive of a risk for civil war. That full democracies almost never have civil wars. Full autocracies rarely have civil wars. All of the instability and violence is happening in this middle zone. And there’s all sorts of theories why this middle zone is unstable, but one of the big ones is that these governments tend to be weaker. They’re transitioning — some of the authoritarian features are loosening up — so it’s easier to organize a challenge. Or, these are democracies that are backsliding, and there’s a sense that these governments are not that legitimate… Anyway, that turned out to be highly predictive.

The second factor was whether populations in these partial democracies began to organize politically, not around ideology — not based on whether you’re a communist or not, or you’re a liberal or a conservative — but where the parties themselves were based almost exclusively around identity: ethnic, religious or racial identity. The quintessential example of this is what happened in the former Yugoslavia.

What was the moment you thought: Wait a minute, I see these patterns in my country right now?

My dad is from Germany. He was born in 1932 and lived through the war there… And starting in early 2016, my dad was so agitated. All he wanted to do was talk about T____ and what he was seeing happening. He was really nervous. He was just, like, “Please tell me T___’s not going to win…. I saw this once before. And I’m seeing it again, and the Republicans, they’re just falling in lockstep behind him.”

I remember saying: “Dad, what’s really different about America today from Germany in the 1930s is that our democracy is really strong. Our institutions are strong. So, even if you had a T____ come into power, the institutions would hold strong.” Of course, then T____ won. My dad would draw all these parallels. The brownshirts and the attacks on the media and the attacks on education and on books. And he’s just, like, “I’m seeing it all again here”. And that’s really what shook me out of my complacency…  And I was like, am I being naive to think that we’re different?

That’s when I started to follow the data. And then, watching what happened to the Republican Party really was the bigger surprise — that, wow, they’re doubling down on this almost white supremacist strategy…. And then I was like, Oh my gosh. The only way this is a winning strategy is if you begin to weaken the institutions; this is the pattern we see in other countries…. These two factors [the status of the government and how people are organizing] are emerging here, and people don’t know.

… When people think about civil war, they think about the first civil war [and think] that’s what a second one would look like. And, of course, that’s not the case at all. People [need to] conceptualize what a 21st-century civil war against a really powerful government might look like.

After January 6th of last year, … I wasn’t surprised, right? People who study this, we’ve been seeing these groups have been around now for over 10 years. They’ve been growing. I know that they’re training. They’ve been in the shadows, but we know about them. I wasn’t surprised.

The biggest emotion was just relief, oh my gosh, this is a gift. Because it’s bringing it out into the public eye in the most obvious way. And the result has to be that we can’t deny or ignore that we have a problem. Because it’s right there before us. And what has been surprising, actually, is how hard the Republican Party has worked to continue to deny it and to create this smokescreen — and in many respects, how effective that’s been, at least among their supporters.

Even the most public act of insurrection, probably a treasonous act that 10, 20 years ago would have just cut to the heart of every American, there are still real attempts to deny it. But it was a gift because it brought this cancer that those of us who have been studying it, have been watching it growing, it brought it out into the open.

Does it make you at all nervous when you think about the percentage of people who were at, say, January 6th who have some military or law enforcement connection?

Yes. The CIA also has a manual on insurgency…. It was written to help the U.S. government identify very, very early stages of insurgency… What are signs that we should be looking out for?

The manual talks about three stages. The first stage is pre-insurgency. That’s when you start to have groups beginning to mobilize around a particular grievance. It’s oftentimes just a handful of individuals who are just deeply unhappy about something. They begin to articulate those grievances [and] to try to grow their membership.

The second stage is called the incipient conflict stage. And that’s when these groups begin to build a military arm. Usually a militia. And they start to obtain weapons and get training. They’ll start to recruit from the ex-military or military and law enforcement….

When the CIA put together this manual, it’s about what they’ve observed … in other countries. It’s just shocking, the parallels. In the second stage, you start to have a few isolated attacks….The danger in this stage is that governments and citizens aren’t aware that this is happening. So when an attack occurs, it’s usually just dismissed as an isolated incident, and people are not connecting the dots.

And because they’re not connecting the dots, the movement is allowed to grow until you have open insurgency, when you start to have a series of consistent attacks, and it becomes impossible to ignore.

… Here in the United States, because we had a series of long wars in Afghanistan and Iraq, we’ve had more than 20 years of returning soldiers… This creates a ready-made subset of the population that you can recruit from.

What do you say to people who charge that this is all overblown?

… Groups — we’ll call them violence entrepreneurs, the violent extremists who want to tear everything down and want to institute their own radical vision of society — they benefit from the element of surprise, right? They want people to be confused when violence starts happening…. Which is why people who lived through the start of the violence in Sarajevo or Baghdad or Kyiv, they all say that they were surprised. And they were surprised in part because they didn’t know what the warning signs were.

But also because people had a vested interest in distracting them or denying it so that when an attack happened, or when you had paramilitary troops sleeping in the hills outside of Sarajevo, they would make up stories. You know, “We’re just doing training missions”…

I wish it were the case that by not talking about it we could prevent anything from happening. But the reality is, if we don’t talk about it, [violent extremists] are going to continue to organize, and they’re going to continue to train. There are definitely lots of groups on the far right who want war. They are preparing for war. And not talking about it does not make us safer.

What we’re heading toward is an insurgency, which is a form of a civil war. That is the 21st-century version of a civil war, especially in countries with powerful governments and powerful militaries, which is what the United States is. And it makes sense. An insurgency tends to be much more decentralized, often fought by multiple groups…. Sometimes they coordinate their behavior. They use unconventional tactics. They target infrastructure. They target civilians. They use domestic terror and guerrilla warfare. Hit-and-run raids and bombs.

We’ve already seen this in other countries with powerful militaries, right? The IRA took on the British government. Hamas has taken on the Israeli government. These are two of the most powerful militaries in the world….

Here it’s called leaderless resistance. That method of how to defeat a powerful government like the United States is outlined in what people are calling the bible of the far right: “The Turner Diaries,” which is this fictitious account of a civil war against the U.S. government. It lays out how you do this. And one of the things it says is, do not engage the U.S. military. You know, avoid it at all costs. Go directly to targets around the country that are difficult to defend and disperse yourselves so it’s hard for the government to identify you and infiltrate you and eliminate you entirely.

Are these the things that will be or just that may be?

I can’t say when it’s going to happen. I think it’s really important for people to understand that countries that have these two factors, who get put on this watch list, have a little bit less than a 4 percent annual risk of civil war. That seems really small, but it’s not. It means that, every year that those two factors continue, the risk increases.

The analogy is smoking. If I started smoking today, my risk of dying of lung cancer or some smoking-related disease is very small. If I continue to smoke for the next 10, 20, 30, 40 years, my risk eventually of dying of something related to smoking is going to be very high if I don’t change my behavior.

I think that’s one of the actually optimistic things: We know the warning signs. And we know that if we strengthen our democracy, and if the Republican Party decides it’s no longer going to be an ethnic faction that’s trying to exclude everybody else, then our risk of civil war will disappear. We know that. And we have time to do it. But you have to know those warning signs in order to feel an impetus to change them.

Goodbye Norms, Hello Power

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Ezra Klein points out that when Senator McConnell refused to have the Senate consider a Democrat’s Supreme Court nomination and then rushed through a Republican’s, nothing he did was “against the rules”. That doesn’t mean Washington is the same as before:

McConnell … didn’t steal any seats. Nothing he did was against the rules, which was why Democrats found themselves powerless to stop him. Liberals, in their anger, have too often ignored the logic of McConnell’s actions. He understood what too many have ignored: America’s age of norms is over. This is the age of power. And there’s a reason for that.

Let’s start here: The Supreme Court has changed. In the ’50s and ’60s, you would have had a hard time inferring a justice’s political background from his votes, as this analysis by Lee Epstein and Eric Posner shows. In the ’90s, Byron White, a Democratic appointee, had a more conservative voting record than all but two of the Republican-appointed justices — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor of the court’s liberal wing until his retirement in 2010, was appointed by Gerald Ford, a Republican.

But this record of independence was understood, by the parties that produced it, as a record of failure. The vetting process by which nominees are chosen was revamped to all but guarantee ideological predictability. In recent years, “justices have hardly ever voted against the ideology of the president who appointed them,” Epstein and Posner find.

… Ideological polarization is colliding with America’s peculiar political institutions…. Our political system is not designed for political parties this different…. It wasn’t designed for political parties at all. The three branches of our system were intended to check each other through competition. Instead, parties compete and cooperate across branches, and power in one can be used to build power in another — as McConnell well understood.

The Supreme Court is a strange institution — the final word on the law, but with no way to enforce its decisions; clearly political, but supposed to stand above politics; composed of nine bickering individuals, but posing as the impartial voice of the Constitution — and we have papered over its peculiarities with traditions of continuity and restraint. We ask senators to judge nominees by their qualifications, not their ideas. We ask justices to uphold past decisions they believe are wrong, even immoral. At least, we did. In recent years, the political importance of the court has overwhelmed the norms that (somewhat) insulated it from politics.

As I wrote: “There is perhaps no single vote members of the U.S. Senate take with as much long-term ideological importance than that of a lifetime appointment to the Supreme Court, and asking them to keep that vote, and that vote alone, separate from the ideological promises they make to their voters, and to themselves, is bizarre.” The old norm worked when party conflict was mild enough to create a court that felt, and perhaps was, largely nonpartisan. But those days are long gone.

Making matters worse is that the Supreme Court has gone from being undemocratic to being anti-democratic. Lifetime appointments are iffy under the best of circumstances, but the vagaries of retirements and deaths have given Republicans a control that makes a mockery of the public will. Five of the court’s six Republican justices were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after a direct intercession by five of the court’s conservatives in Bush v. Gore). D____ T____ was able to make more appointments in one term than Barack Obama was able to make in two.

You might think that the minoritarian nature of this Supreme Court would produce a restrained majority, one fearful of falling too far afoul of public opinion. It has not. To read the flurry of decisions and concurrences and dissents in Dobbs is to read less about abortion and rights than you might expect. Much of the text is a debate over the legal principle of stare decisis, which directs the court to respect precedent when making decisions.

Stare decisis helps solve a particular problem for the Supreme Court, which must prove itself an institution operating across time, not simply an amalgamation of nine voices at any given moment. When it resists the impulse to overturn past decisions, the court builds in a continuity beyond what the opinions of its members would offer.

Roe was already revisited, in the 1992 Casey decision, and left mostly standing. Under the norms that have governed the court for decades, Roe should have been safe, not because the majority agrees with it today, but because the Supreme Court does not upend settled law based on what the majority believes today.

This is the subject of Chief Justice John Roberts’s disappointed concurrence. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” The dissent of the liberals thrums with even deeper anger: “Here, more than anywhere, the court needs to apply the law — particularly the law of stare decisis.”

But stare decisis, as the justices know far better than I do, is not a law. And so, in his majority opinion, Samuel Alito brushes it aside….

The argument Alito makes throughout his opinion is simple: The court can err. When it has erred, it must correct itself. Make all the fancy arguments about stare decisis you want, but if a decision is wrong, then it’s wrong, and it must be revisited. To take his perspective for a moment: There is something maddening about being appointed to a seat on the land’s highest court but told to leave standing the decisions you and four of your colleagues consider most noxious.

On some level, he is right. Stare decisis makes little sense. The problem is that, without it, the Supreme Court itself makes even less sense. It is just nine costumed political appointees looking for the votes they need to get the outcomes they want. And the further we travel down that road, the more the mystique that sustains the court dissolves. There is no rule, really, that the Supreme Court must be obeyed as the final word in constitutional interpretation — that, too, is a norm, and one that the court has no power to enforce. If all the Supreme Court is left with are the rules, soon enough there will be no Supreme Court to speak of.

So what would it look like to rebuild the rules and norms of the Supreme Court so they made sense in a polarized era — so that it could be an institution that moderated our political conflicts, rather than worsening them? It got little notice, but there was, recently, a thorough and important effort to think through that question. It will be the subject of next week’s column.

Unquote.

If what Mr. Klein says in his next column is worth sharing, I will.

If Biden Knew Now What He Didn’t Know Then

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If a Democrat as audacious as Mitch McConnell was president, they’d point out we increased the size of the Supreme Court to 9 justices in 1869 because there were 9 federal judicial circuits. The population was 38 million. Now that there are 13 circuits and the population is 338 million, the president would say we need 13 justices. The president would deny any other motive and Democrats would immediately add 4 Democrats to the Court. But that’s not the president we have.

How bad is it? How bad will it get? Brian Beutler of Crooked Media lays it out in an edition of his Big Ten newsletter:

Sometimes I wonder what would happen if we could travel back in time to 2019 or early 2020 and tell Joe Biden he’d be the next president, but that under the governing approach he’d laid out for primary voters—pro-filibuster, anti-court reform, conciliatory to a fault with the GOP—he’d oversee the abolition of the right to abortion, the hollowing out of the regulatory state, the imposition of an imaginary constitutional right to concealed carry, the disintegration of his policy agenda, an inability to marshal a federal response to a violent coup, and perhaps, right before his re-election campaign, the constitutionalization by five rogue Supreme Court justices of the January 6 strategy to steal elections for Republican candidates. 

What if anything would he do or say differently? … If Biden had rethought his institutionalism, what different steps would he have taken to rally Democrats around a new and (by necessity) more partisan approach to governing, to insure against rapid democratic backsliding and maybe even the end of the republic?

The answer may actually be “none.” All of these things have come to pass, and Biden still at least claims faith in the institutions that are steering the country toward an authoritarian takeover. 

But I suspect this is not the presidency Biden wanted or imagined for himself. I think he really did want to save the country … and preside over an American renewal. I think (because nothing else really makes sense) that he drove himself into a cul-de-sac by running on the idea that his victory would largely solve these problems automatically, that retrofitting the country’s democracy wouldn’t require using carrots and sticks and tireless persuasion to change what it means to be a Democrat. That as a calm, unimpassioned figure, his mere presence would quiet national unrest and refasten the bonds that used to hold the country together. By the time he realized he’d handed Joe Manchin and Kyrsten Sinema all the justifications they’d need to stand in the way of responding to new threats, it was too late.

Obviously this is a multi-layered counterfactual, of limited probative value. Maybe if Biden had been open to more procedurally radical ideas, he would’ve lost the election; maybe no amount of cajoling from the leader of the party—no matter how early and heartfelt and persuasive—would’ve changed what Manchin and Sinema thought they could get away with. If you’re intent on concluding that Biden played a bad hand perfectly, and we were always destined for the abyss, it isn’t hard to reason your way there.  

But the problems swallowing Biden’s presidency were easily foreseeable. For one thing, I foresaw them! In October 2019, I wrote that candidates who cling, like Biden, “to the view that a golden era of compromise will dawn once T____ is gone
 will lock themselves into a mode of governing that can not work anymore. Their supporters and intra-party critics will be demoralized, their presidencies will stagnate, and they will waste precious time grasping for a better approach.”

Around the same time, I pleaded with Democrats to begin leveling with their voters about the dangers of the Supreme Court, and the need to dilute its power, because, “If Dems don’t preemptively expand the courts, Republican judges, with their lifetime appointments, can simply wait until the elected branches are divided again and then implement the disastrous judicial agenda they’ve been building toward for 40 years.”

That actually proved a little optimistic, because what happened in reality is those justices waited until the Democratic Congress gave the high sign that it would under no circumstances intervene to check them, and they got to work right away….

Obviously we can’t go back to 2019 to travel roads not taken, we can only move forward from where we are. That’s why I’ve been going on for months about what Democrats should do if and when the Supreme Court overturns Roe v. Wade. Well, that happened a week ago now, but the simple idea remains the same: Level with voters about the party’s current limitations, stemming from its narrow majorities, and make a simple promise to codify Roe as a first order of business next year if voters manage to give them two more Senate seats and a House majority. 


but at the same time I know that even on the off chance that this strategy works out perfectly—that Democrats make the midterms a referendum on Roe, and win the majorities they need to codify it—we’ll still be plagued by those earlier failures. 

Without movement to reform the courts, it’s easy to see how a hard fought victory could turn pyrrhic. If Dems codify Roe in January 2023, without taking any steps to insulate it from the illegitimate judiciary, I give it a few weeks before Republicans find a corrupt judge, probably a T____ judge, to enjoin it nationwide on some laughable pretext. I’d give it better-than-even odds that this same Supreme Court would make up a basis for voiding it. 

That doesn’t mean the thing I keep badgering Democrats to do isn’t worth it….It’s easy to get yourself spun up about how things might go wrong, and then use the likelihood of future setbacks as an excuse to do nothing now. Even if Democrats never get that court-reform religion, codifying Roe next year would be better than retreating tactically. If a judge enjoins it, that’s a new opportunity for the same Democratic majority to consider checking and balancing the judiciary.

But Democrats aren’t going to get there so long as the Democratic president is aggressively opposed to expanding the court. The Dobbs ruling didn’t change their minds, the subsequent opinion stripping EPA of the power to regulate climate pollution didn’t change their minds. Why would a ruling that voids the Women’s Health Protection Act change their minds? Their minds will start to change when the leadership stops being scared of going to war with the courts. I gather they’re scared that if they blur the abortion issue with the cause of court reform, the public will reject it. But the thing to do then isn’t to say â€˜I’m not for expanding the court,’ it’s to say the court has lost its legitimacy, and it needs to be restored one way or another.

I guess what I’m trying to get across is that it’s critically important for Biden and Dems to understand what has happened to them, why it happened, and to abandon the disastrous thinking that led them here. 

Personally, I think someone with Biden’s ear should tell him he’s perhaps four months away from going down in history as the president who lost democracy without throwing even a half-hearted punch.

On Friday, this same rotten court announced that it will hear a case that was cooked up specifically to constitutionalize the GOP’s January 6 strategy for stealing elections. Needless to say, if the Alito 5 rule the way D____ T____ wants them to rule (and they very well might) that’s likely game over for the republic.

And the worst part is, that isn’t the kind of wreckage that Democrats can fix by codifying this or that. Democrats have to expand the Court before these ghoulish justices hear or decide that case, or they will corrupt the 2024 election, and we’ll likely never get another chance.

Mr. Beutler continues here.