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Category Archives: Politics

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.

Two Nations, Not One? Or One Under Reactionary Control?

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It’s no secret that the division of America into blue Democratic states and red Republican ones roughly corresponds to the two sides in the Civil War. It’s also pretty clear that the Civil War never quite ended. Ronald Brownstein of The Atlantic says we should assume the blue/red division will become more pronounced in the coming years:

In a private newsletter that he writes for a small group of activists, [Michael Podhorzer, a longtime labor union political strategist] recently laid out a detailed case for thinking of the two blocs as fundamentally different nations uneasily sharing the same geographic space.

… Podhorzer writes: “In truth, we have never been one nation. We are more like a federated republic of two nations: Blue Nation and Red Nation. This is not a metaphor; it is a geographic and historical reality”.

To Podhorzer, the growing divisions between red and blue states represent a reversion to the lines of separation through much of the nation’s history. The differences among states [today], he writes, are “very similar, both geographically and culturally, to the divides between the Union and the Confederacy. And those dividing lines were largely set at the nation’s founding, when slave states and free states forged an uneasy alliance to become ‘one nation.’”

Podhorzer isn’t predicting another civil war …, but he’s warning that the pressure on the country’s fundamental cohesion is likely to continue ratcheting up in the 2020s. Like other analysts who study democracy, he views the faction that now dominates the Republican Party—what he terms the “MAGA movement”—as the U.S. equivalent to the authoritarian parties in places such as Hungary and Venezuela. It is a multipronged, fundamentally antidemocratic movement that has built a solidifying base of institutional support through conservative media networks, evangelical churches, wealthy Republican donors, GOP elected officials, paramilitary white-nationalist groups, and a mass public following. And it is determined to impose its policy and social vision on the entire country—with or without majority support. “The structural attacks on our institutions that paved the way for T____’s candidacy will continue to progress,” Podhorzer argues, “with or without him at the helm.”

All of this is fueling what I’ve called “the great divergence” now under way between red and blue states. This divergence itself creates enormous strain on the country’s cohesion, but more and more even that looks like only a way station. What’s becoming clearer over time is that the [Republican Party] is hoping to use its electoral dominance of the red states, the small-state bias in the Electoral College and the Senate, and the GOP-appointed majority on the Supreme Court to impose its economic and social model on the entire nation—with or without majority public support. As measured on fronts including the January 6 insurrection, the procession of Republican 2020 election deniers running for offices that would provide them with control over the 2024 electoral machinery, and the systematic advance of a Republican agenda by the Supreme Court, the underlying political question of the 2020s remains whether majority rule—and democracy as we’ve known it—can survive this offensive….

The hardening difference between red and blue, Podhorzer maintains, “empowers” the 10 purple states (if you include Arizona and Georgia) to “decide which of the two superpower nations’ values, Blue or Red, will prevail” in presidential and congressional elections. And that leaves the country perpetually teetering on a knife’s edge: The combined vote margin for either party across those purple states has been no greater than two percentage points in any of the past three presidential elections, he calculates.

The increasing divergence—and antagonism—between the red nation and the blue nation is a defining characteristic of 21st-century America. That’s a reversal from the middle decades of the 20th century, when the basic trend was toward greater convergence.

Mr. Brownstein then devotes several paragraphs to describing differences between the two parts of the country. The blue states are richer, healthier, better educated and more productive than the red states, by all kinds of measures, the same way cities in red states tend to be richer, healthier, better educated and more productive than their rural surroundings. Obviously, blue states and red states are also diverging in the kind of laws they’re passing: it’s easier to end an unwanted pregnancy in a blue state and easier to shoot a stranger in a red state. Mr. Brownstein continues:

To Podhorzer, the growing separation means that after the period of fading distinctions, bedrock differences dating back to the country’s founding are resurfacing. And one crucial element of that, he argues, is the return of what he calls “one-party rule in the red nation.”

… He documents a return to historical patterns from the Jim Crow era in which the dominant party (segregationist Democrats then, conservative Republicans now) has skewed the playing field to achieve a level of political dominance in the red nation far beyond its level of popular support. Undergirding that advantage, he argues, are laws that make registering or voting in many of the red states more difficult, and severe gerrymanders that have allowed Republicans to virtually lock in indefinite control of many state legislatures….

The core question that Podhorzer’s analysis raises is how the United States will function with two sections that are moving so far apart. History, in my view, offers two models.

During the seven decades of legal Jim Crow segregation from the 1890s through the 1960s, the principal goal of the southern states at the core of red America was defensive: They worked tirelessly to prevent federal interference with state-sponsored segregation but did not seek to impose it on states outside the region.

By contrast, in the last years before the Civil War, the South’s political orientation was offensive: Through the courts (the 1857 Dred Scott decision) and in Congress (the Kansas-Nebraska Act in 1854), its principal aim was to authorize the expansion of slavery into more territories and states. Rather than just protecting slavery within their borders, the Southern states sought to control federal policy to impose their vision across more of the nation, including, potentially, to the point of overriding the prohibitions against slavery in the free states.

It seems unlikely that the [today’s] Republicans installing the policy priorities of their preponderantly white and Christian coalition across the red states will be satisfied just setting the rules in the places now under their control. [Many believe] that the MAGA movement’s long-term goal is to tilt the electoral rules in enough states to make winning Congress or the White House almost impossible for Democrats. Then, with support from the GOP-appointed majority on the Supreme Court, Republicans could impose red-state values and programs nationwide, even if most Americans oppose them. The “MAGA movement is not stopping at the borders of the states it already controls,” Podhorzer writes. “It seeks to conquer as much territory as possible by any means possible.”

The model, in other words, is more the South in 1850 than the South in 1950…. That doesn’t mean that Americans are condemned to fight one another again as they did after the 1850s. But it does mean that the 2020s may bring the greatest threats to the country’s basic stability since those dark and tumultuous years.

Unquote.

For more on the defensive vs. offensive efforts of the Republican Party and the historical background in the South, see this column by Jamelle Bouie of the New York Times. He says this is the party’s goal:

A government of reactionaries, by reactionaries and for reactionaries. Or, put a little differently, Heads we win, tails you lose.

“One of the Most Intellectually Dishonest and Poorly Argued Decisions in American Judicial History”

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So writes Saul Cornell, professor of history at Fordham University and the author of “A Well-Regulated Militia: the Founding Fathers and the Origins of Gun Control in America”:

In a 6–3 decision …, the Supreme Court struck down New York’s century-old gun law against concealed carry on [June 23rd]. New Yorkers and residents of a handful of other states and the District of Columbia—which had more strictly regulated who can have a concealed-carry permit—must now accept the type of laws popular in Texas and other red states. The decision was hardly a surprise to court watchers, but the opinion is nonetheless troubling on many levels.

The fact that this opinion was written by Justice Clarence Thomas, an originalist so rigid in his thinking that Justice Antonin Scalia once used him as a foil to distinguish his respect for precedent—”I’m an originalist and a textualist, not a nut,” Scalia quipped— contrasting the burn-it-all-down approach favored by his laconic colleague. Thomas has long been a proponent of supersizing the Second Amendment and has argued—against strong statistical evidence—that lower courts were treating the Second Amendment as a second-class right.

Thomas and his fellow originalists have set out to analogize the Second Amendment to core free speech rights, a bizarre legal analogy with little foundation in either legal history or tradition. In fact, guns have generally been treated as a form of property under American law for more than three centuries, a fact that appears to have escaped the notice of Thomas and the court’s newest originalists despite their professed commitment to an interpretive approach that focuses on history, text, and tradition.

Ultimately, the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history. Indeed, with little sense of irony, Thomas even quotes Chief Justice Roger B. Taney’s infamous opinion in Dred Scott approvingly, not only treating it as good legal authority but suggesting that the author of the worst decision in American law understood the Second Amendment better than any other judicial figure in American history. Turning to Taney for judicial inspiration would have once ended a judge’s career, but the court’s new originalist majority appears most of the time to be making history by inventing it, instead of by interpreting the law.

The old originalism of Robert Bork and Chief Justice William Rehnquist sought to use history to constrain judicial discretion and activism. The new originalism favored by Thomas and his fellow originalists has embraced judicial activism on steroids. Indeed, the court’s current use of originalism more clearly resembles an act of ventriloquism in which old texts are pressed into the service of modern agendas with little regard to how they were read at the time they were written. The new originalism, including the Bruen decision, turns historical actors into little more than stage dummies for the justices to project their own modern values and ideas onto the past.

One of the most remarkable features of Justice Stephen Breyer’s trenchant dissent in Bruen is his frank assessment of the appalling quality of the history being pedaled by his colleagues. Calling out the justices for engaging in “law office history,” a degraded form of legal analysis that warps history to fit the desired ends favored by a judge or justice, is something scholars have criticized the courts—including the Supreme Court—for practicing with some frequency. Still, it is unprecedented for a serving justice to hurl this type of accusation at colleagues sitting on the bench, and Breyer did just that. It is hard to dispute Breyer’s characterization of his colleagues given that Bruen is an opinion filled with legal and historical errors that all cut in the same direction, expanding gun rights by rewriting the American past.

To illustrate the shocking and amateurish use of history in Bruen, one need only examine the way Thomas ignored and distorted the evidence of robust gun regulation during Reconstruction, the period of history that he and other originalists have claimed is the key to understanding the scope of legitimate gun regulation by states and localities. Thomas reluctantly conceded that Reconstruction-era Texas had laws of similar scope to New York’s challenged laws. Yes, once upon a time Texas led the nation in enacting strong gun regulation!

Thomas, though, falsely claimed Texas was an outlier and, hence, that its evidence could be discarded. Similarly, Thomas discounts strong gun regulations in the Western United States because these too were unrepresentative outliers. In the Thomas originalist universe, apparently no amount of evidence is enough to support gun control, but no amount of evidence is too little to legitimate gun rights claims. In fact, millions of Americans were living with gun laws at least as restrictive as the New York law at issue in Bruen for many years during the period of history Thomas contends is crucial to understanding the application of the Second Amendment to states and localities.

Just looking at the history of firearms law in nation’s largest cities undermine the central claim in Bruen. As the table below shows, all of the nation’s largest cities were living under some form of restrictive public carry regime by the end of the 19th century. Many of these laws were enacted during Reconstruction, or soon after. Thomas not only ignores this evidence, but he also ignores recent scholarship showing that these laws were enforced in a racially neutral fashion for decades before white supremacists turned them against Black people.

Untitled

Unfortunately, Bruen’s level of intellectual dishonesty and ignorance of basic legal historical method and well established facts easily located in readily accessible sources further undermines the legitimacy of the court at a moment when it can ill afford any further erosion in its standing. Bruen may be a victory for gun rights advocates, but it is another example of a court in serious intellectual and moral decline.

A Footnote to “How To Fix a Lawless Supreme Court”

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Two of the three law professors I quoted in this earlier post believe the Constitution wouldn’t permit legislators to overrule a state’s voters and select their own slate of electors for the Electoral College, after the voters had already voted for president (or possibly without allowing the voters to vote at all). Leah Litman and Katherine Shaw briefly but forcefully argue this in a law journal article, “Textualism, Judicial Supremacy and the Independent State Legislature Theory” [p. 4].

The Independent State Legislature Theory (ISLT) is a fanciful idea being pushed by some Republicans that would give state legislatures total control over their state’s Electoral College votes. Even some members of the Supreme Court seem to like the idea, since it would allow gerrymandered legislatures in states like Wisconsin and North Carolina to help elect Republican presidents, regardless of who won the presidential election in their state. This is what Litman and Shaw say about it:

We do not offer a direct critique of a potential scenario in which a state legislature, relying on Article II [of the Constitution], seeks to assign to itself the power to directly appoint presidential electors, including after voters have cast their votes. That would, without doubt, represent one of the most high-stakes, antidemocratic, and lawless contexts in which a version—to be sure, a fringe version—of the ISLT might be deployed.

But, as far as we understand the rationales for such a move—which was reportedly considered and urged by a number of T____ advisors and supporters, including Ginni Thomas, in the aftermath of the 2020 election—they do not entail claims that state entities have misinterpreted state laws. They rest instead on the distinct claim that state legislatures’ authority to prescribe the method of appointing presidential electors is plenary and unconstrained by basic notions of due process, democracy, or constitutional protections of the franchise. As profoundly misguided as such a claim is, debunking it is not our project here. Our focus is the independent state legislature theory, not its warped variant, the anti-democratic state legislature theory—which might be better described as the state-legislature-as-the-end-of-democracy theory.

I hope the Supreme Court Six agree with the professors (and the rest of the sane legal community) when the justices rule on Moore v. Harper in their next term. Given their recent track record, there’s no guarantee that they will.

How To Fix a Lawless Supreme Court

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The Judiciary Act of 1869 “provided that the Supreme Court of the United States would consist of the chief justice of the United States and eight associate justices [and] established separate judgeships for the U.S. circuit courts”.

There were nine circuit or appellate courts in 1869. The US population was around 38 million. Now there are thirteen circuits. The population is 338 million. We’ve also got a lot more laws and lawyers. A simple act of Congress, signed into law by the president, could add four justices to the Supreme Court, one for each circuit. Given the Court’s additional workload, simple arithmetic and common sense support adding four Supreme Court justices.

An added benefit would be that the president could nominate and the Senate could approve four justices who respect the Constitution and legal precedents; who don’t want to promote Christianity, patriarchy, white supremacy, plutocracy and the gun culture; and who don’t want to give corporations license to destroy the environment. In other words, seven honorable justices vs. the six dishonorable ones we have now.

I think that’s the best way to fix a lawless Supreme Court, although there are other possibilities (all, of course, assuming a Democratic House of Representatives and at least fifty Democratic senators go along).

Paul Waldman explains how states like California and New York are already working on new licensing requirements and the wide-ranging designation of what the Republican majority called “sensitive places” where guns can be prohibited:

[When you say] “the Supreme Court says I have the right to carry around this lethal instrument giving me the ability to murder anyone I encounter in an instant”, the rest of us are more than justified in responding: “Yes, that’s what the Supreme Court says. But we will take steps to protect ourselves from the danger you and other gun owners pose”….You’ll be able to get your guns, but just as you have to show you can operate a motor vehicle safely before getting a driver’s license, you’ll have to satisfy some requirements before getting a gun permit.

And just like you can’t drive your car on sidewalks or in grocery stores, you can’t take your gun anywhere you want. No doubt the Supreme Court Six will rule in favor of insanity, but, as Mr. Waldman says, some laws will survive, the legal process could take years and, meanwhile, lives will be saved.

Jamelle Bouie has written two columns on the same subject this week. From his second:

[Article 3, section 2 of] the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.” [But] the court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction.
 It can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

He then discusses the “Guarantee Clause” (Article 4, section 4″, which says that “the United States shall guarantee to every State in this Union a Republican Form of Government”. A republic is generally considered to be a state in which supreme power is held by the people and their elected representatives, not by a monarch. Interestingly, courts have been reluctant to specify exactly what a republican form of government is, leaving that decision to Congress. Mr. Bouie continues:

[But we do have] Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, … and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”

This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”

A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.

 As Mr. Bouie says in his first column:

The Supreme Court does not exist above the constitutional system… In the face of a reckless, reactionary and power-hungry court, Congress has options
.The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

It’s almost impossible to imagine the 50 Democrats in today’s Senate all having the courage and understanding to seize the moment and reform the Supreme Court (one of them who’s against reforming the filibuster is rumored to have killed a proposed surtax on incomes over 10 million dollars, I suppose because of her support for the working class).

But it looks like a terrible crisis may be approaching. Three law professors write in today’s Washington Post about a case the Court has agreed to hear later this year, Moore v. Harper:

Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.

Harper invites the Supreme Court to go back on that promise. This invitation is based on an unsupportable legal claim known as the independent state legislature theory (ISLT). The theory would disable state courts from protecting voting rights in federal elections.

In theory (and given the recklessness of the Republican majority), the Court might rule that state legislatures have absolute authority to determine how their states vote for president. State legislators could ignore the voters and appoint whoever they wanted to represent their state in the Electoral College.

The outcome in 2024 is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets [the rest]. Biden is going to the White House for another four years.

Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis.

We then hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote: North Carolina, Wisconsin, Michigan, Pennsylvania and Arizona.

CNN announces that DeSantis has won the election….Â