In No Uncertain Terms

What kind of language does the current moment deserve? Some prefer measured, unemotional words. Others prefer something more. 

Steve Schmidt is a conservative political strategist who is severely critical of today’s Republican Party. He was John McCain’s senior strategist in the senator’s losing presidential campaign (should we blame Schmidt for the rise of Sarah Palin?). He was one of the founders of the Lincoln Project and is active on Twitter. Here’s some of what he had to say this weekend:

Please watch this and share. I am absolutely fucking outraged and enraged by the nihilistic vandalism of our country for the sake of sustaining T____s’ ONGOING campaign to hold political power at the price of burning it all down. (Twitter)

The immorality of it all is beyond grotesque. It is depraved. It is cowardly. It is shameful and despicable conduct at an epic level. There is a rot, a deep rot within our politics that can only be fixed by purging people like @marcorubio from public life by rebuking them in an election and then silencing them with shame.

No healthy country can have @GOPLeader @marcorubio @mattgaetz @tedcruz @laurenboebert @RepMTG and too many more to conceivably mention in positions of public trust. The cynicism, lying, extremism, weakness, insanity and cowardice combines to create a putrid stench that simply beggars belief. It’s despicable fucking conduct that’s so breathtaking there is no word that comes to mind. The depraved indifference and utter, shocking disregard for the lives of the American people is an act of corruption unequaled in American history.

There are hundreds of Thousands of dead Americans who would be alive but for the stupefying incompetence, carelessness and stupidity of T____, his government, his cabinet secretaries, aides, propagandists, financiers and congressional accomplices. 620.000 Americans are dead yet, the assault on sanity continues unabated. It never ever fucking never ever EVER takes a day off, ever.

Here we are today, the Delta variant raging, the pandemic reignited by an unvaccinated population that has been lied to, deceived by, disoriented by and confused by the deliberate, purposeful premeditated lying of Murdoch, Fox News, Carlson, and hundreds of lesser demagogues and liars. More will die because of this nihilism. Evil.

The country will be consumed by Covid again so that T____, @GOPLeader and all the rest of his nest of nationalists, autocrats, extremists, Racists, fascists and conspiracy loons can blame it all on Biden. They are happy to burn everything down around them for power, including us. Every normal person in this country should be deeply frightened by this. Deeply. I know I am. We have to fight back against the lies and malice that have become virtues to our elected political arsonists. They call themselves Republicans, but that is a disguise for what they have become.

The snarling white faces frozen in photos, screaming in rage and spitting on black children trying to walk into a schoolhouse would no doubt be awestruck at the capacity of technology to allow their children and grandchildren to virtually spit on the greatest champion in the history of her sport, all the way to Tokyo. They would be slack jawed at the progress we have made in America. Their kids and grandkids don’t even have to call black Americans the N word anymore. They just say CRT [Critical Race Theory].

The next chapter of the story, a tragic and deadly farce will be the Blame it all on Biden part. The arsonists will be gleeful in their attacks on the firefighters who are fighting to save lives and extinguish the conflagration. We have to bury this in the next two elections. If we don’t , we lose the country. We will lose it to madness, nihilism; cynicism, greed, hate, racial animus. We will lose it to terrible people, the depraved and extreme, the corrupt and sinister. We will lose it to the T____ family and we won’t get it back next time.

Next:

I’ve driven 1000 miles this week . . . and thought about a lot of things. I’m not sure this is a fair criticism as I’m working through the wretchedness of this dishonest moment and the nihilistic craziness of the overwhelming majority of elected Republican leaders (Twitter).

Many news stories and a great deal of present moment journalism cover our political free fall through a lens that captures each appalling moment, often deeply and compellingly. The stories are framed around an event, something that just occurred, rather than as a puzzle piece, which gives context to a larger, fluid story unraveling before our eyes.

Let’s look at two people as examples. Each has spoken out against T____ in the past. They were precise in their worry and condemnation of his exquisite awfulness. Each knew exactly who T____ was. The one thing T____ deserves great credit for is his absolute consistency, steadfastness and commitment to the truth of sharing who he really is. They all knew what T____ was because they told us. Then they collaborated and discarded every principle they claimed to hold.

We all know this is true. I know it. You know it. They know it and every journalist who ever interviews them knows it.

They are titanic frauds, elected weasels who share a talent for shamelessness, built on a foundation of cynicism and stone cold belief that their supporters are marks, a type of feeble prey that are either too stupid to notice the contradictions and hypocrisy of literally every spoken word or are too lazy and slug-like to care about being abused by constant gaslighting.

How should this be covered? Lie by lie, or is the story the journey of the liar and their deepening commitment to an autocratic movement. For me that is the story. It is a continuum that is dynamic and continually unfolding. This puts a different frame around the consideration @EliseStefanik should be given when she says really stupid and dishonest things like @SpeakerPelosi was the real 1/6 villain and @Liz_Cheney, the pristinely conservative Republican Congresswoman from Wyoming, is a Pelosi Democrat. Why should anyone pretend that @EliseStefanik is on the level about anything? Even she knows she is lying and she knows exactly why she is doing it.

She is doing it for power and self interest. She’s not an actress. She isn’t playing a part in a make believe story. She is an active participant in a movement that is trying to burn down our democracy in both the name of freedom and D____ T____. She is a leader in a movement that has desecrated the compact between us around how we share political power in America. They have rejected the most fundamental aspect of our system of government. What more evidence is needed around her bad faith?

When these members speak they lie. When they lie there seems to be some weird Washington DC courtesy extended in any given story, where whatever it is they are saying is covered through a prism of good faith, despite the accumulation of past statements and gazillions of hours of interviews that prove beyond a shadow of a doubt that it is all an exercise in bad faith.

In short, the individuals who are most effective at demonstrating the depravity of the moment are the collaborators themselves. They indict themselves for the cowards, cynics and opportunists they are with their own words. Shouldn’t the story focus on the cancer that has consumed their public character? American Puritanism turned the question of public character into a sexual one over the last 35 years. Two results followed.

One, previously unimaginable depths of hypocrisy were achieved by @newtgingrich, Ken Starr and legions of others. Second, the concept of public character became so twisted that the behaviors of @EliseStefanik @marcorubio and @LindseyGrahamSC aren’t viewed through a character lens at all. Selling out the country, with purpose and intent for power and self is a betrayal of duty and a despicable act. It is also a plainly obvious one. Why do we have to pretend that the absurdities they utter aren’t easily refutable by them? By their own words.

When @EliseStefanik speaks shouldn’t all of questions that follow be focused on why she is saying the things she is saying as opposed to what she is saying? What is happening in this country is building. It’s gathering. It’s moving, growing and evolving. The signs are everywhere. Yes, a million loathsome moments are all worthy of scrutiny and study. I just wonder if the focus on those moments is causing us to miss the movement towards the destination ahead that while unseen for now is certainly terrible and likely a hellscape from which there is no return. Perspective matters when it comes to orienting to reality and danger.

Sometimes I worry about missing the autocratic forest for the trees.

Finally:

The 1/6/21 attack on America took the form of an insurrection aimed at destroying the Constitutional process that lawfully bestows power to the winner of a Presidential election in the in the the name of the People of the United States who are sovereign in this land. It was incited by a President of the United States and a legion of liars and cynics that include nearly every Republican leader. Of course, that fact alone defines it as the worst and most dangerous attack since the Civil War, but it gets worse (Twitter).

The 1/6 Insurrection by a T____ mob mixed with organized extremist elements including white supremacists, fascists, and violent paramilitary militia groups is the only attack against the nation in our history that has not rallied the whole of the American people to defend America. Instead, tens of millions are broadly sympathetic to the violence and obvious lies that underpin it all. The whole of the Republican Party has weighed in on the matter by siding with the insurrectionists and the defeated disgrace that incited it.

The measurement scale of gauging the insidiousness of their betrayal and collaboration with this Anti-American movement ranges from incitement and active participation in the attack to a dishonest indifference forged by an alchemy of vices; cowardice, fear, ambition, self interest, cynicism and opportunism have overwhelmed any sense of duty, patriotism and love of country.

No other attack against America in our long story has ever produced that response. No other attack has ever produced such sympathy for the attackers. No other attack has ever produced such a fierce determination to deny it occurred at all by politicians who advance their careers on the singularity of their talent to gaslight and deceive the people they swore an oath to serve by preserving and protecting the Constitution of the United States.

There is a name for the Treacherous lot of elected leaders who have forsaken our country. They call themselves Republicans. They serve a master, not an idea or ideal. They serve their leader, T____. The whole world has seen their perfidy. The whole world has seen their rot and the weakness they are spreading in our country. For sure, the Chinese and Russians have seen it.

What they see is a decaying society brought low by the leaders who were elected to strengthen it. They see a country where the lie and truth can stand equally, just like theirs. They must be rejoicing as idealism is being overrun by a cynicism so powerful that it has caused the greatest crisis of faith and belief in the pillars of our Republic since the Civil War. What a tragic moment. It has left us all with a choice. What side are you on?

There are more of us than them but fanaticism, extremism and commitment are on their side. Apathy to the danger through civic disengagement in the name of political exhaustion is what the autocrats are hoping for. Let’s not give it to them.

In fact, let us fight to create a great awakening and fill it with an unyielding resolve to crush the fever dreams of power for people like T____, @EliseStefanik and @marcorubio who have come to hate with deeds what they profess to love with words. Let’s strike them all down in the ballot box. We cannot let freedom slip away in America.

Charge Him Now: Obstruction of Justice

Remember this? It was news in May 2019:

President D___ T___ would have been indicted for obstruction of justice in special counsel Robert Mueller’s investigation if he did not hold the nation’s highest office, nearly 700 former federal prosecutors argued in an open letter published on Medium on Monday.

The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr’s decision not to charge T___ with obstruction “runs counter to logic and our experience.”

The letter added, “Each of us believes that the conduct of President T___ described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” the letter continued.

The Mueller report cited 10 episodes indicating that T____ could be prosecuted after he left office. He left office more than six months ago, but there is no sign so far that the Department of Justice is pursuing the matter.

Before leaving office, the former president also tried to overturn the results of the election. I’m not sure there is anything in federal law that explicitly makes that behavior illegal. The laws against treason and sedition are narrowly written and may not apply to a president doing everything he can to illegally remain in office. Congress probably never imagined that kind of behavior.

Nevertheless, this latest news is remarkable:

Former President D____ T____ . . . explicitly pressured {the acting attorney general] to declare the 2020 election “corrupt” in a December phone call, according to documents published Friday by the House Oversight and Reform Committee. [They are] the most recent evidence of T____’s extraordinary campaign to overturn the election’s results.

The House committee—which is investigating the T____ administration’s potentially unlawful efforts to influence the outcome of the election—made public notes taken by former acting Attorney General Jeffrey Rosen’s deputy, Richard Donoghue, during a Dec. 27 phone call between T____ and top officials from the Department of Justice.

In the notes summarizing the call, Donoghue recalled T____ asking Rosen and other top officials to “just say that the election was corrupt + leave the rest to me” and congressional allies [Forbes].

But, according to The Guardian:

D____ T____ insisted on Saturday that when he told senior justice department officials to “Just say that the election was corrupt [and] leave the rest to me”, he was not attempting to subvert US democracy, but to “uphold the integrity and honesty of elections and the sanctity of our vote”. . . .

One Washington editor, Benjy Sarlin of NBC News, wrote on Twitter: “We can’t take a continuous historic scandal for granted just because he says it out loud all the time. These are Watergate-level allegations.”

On Friday, Carolyn Maloney, chair of the House oversight committee, said: “These handwritten notes show that President T____ directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election.”

If that isn’t treason or sedition, strictly speaking, it sure sounds like “interference with the orderly administration of law and justice”, i.e. obstruction.

The Department of Justice has work to do in the matter of former president D___ J. T____.

Or doesn’t the rule of law apply to him?

Understanding the Republican Cult of Personality

Paul Krugman explains what social science says about personality cults, such as, oh,  today’s Republican Party, and how these cults support dictatorships around the world:

. . . One paper in particular, by the New Zealand-based researcher Xavier Márquez; I found . . . revelatory.

“The Mechanisms of Cult Production” compares the behavior of political elites across a wide range of dictatorial regimes, from Caligula’s Rome to the Kim family’s North Korea, and finds striking similarities. Despite vast differences in culture and material circumstances, elites in all such regimes engage in pretty much the same behavior, especially what the paper dubs “loyalty signaling” and “flattery inflation.”

Signaling is a concept originally drawn from economics; it says that people sometimes engage in costly, seemingly pointless behavior as a way to prove that they have attributes others value. For example, new hires at investment banks may work insanely long hours, not because the extra hours are actually productive, but to demonstrate their commitment to feeding the money machine.

In the context of dictatorial regimes, signaling typically involves making absurd claims on behalf of the Leader and his agenda, often including “nauseating displays of loyalty.” If the claims are obvious nonsense and destructive in their effects, if making those claims humiliates the person who makes them, these are features, not bugs. I mean, how does the Leader know if you’re truly loyal unless you’re willing to demonstrate your loyalty by inflicting harm both on others and on your own reputation?

And once this kind of signaling becomes the norm, those trying to prove their loyalty have to go to ever greater extremes to differentiate themselves from the pack. Hence “flattery inflation”: The Leader isn’t just brave and wise, he’s a perfect physical specimen, a brilliant health expert, a Nobel-level economic analyst, and more. The fact that he’s obviously none of these things only enhances the effectiveness of the flattery as a demonstration of loyalty.

Does all of this sound familiar? Of course it does, at least to anyone who has been tracking Fox News or the utterances of political figures like [Senator] Lindsey Graham or [House Majority Leader] Kevin McCarthy.

Many people, myself included, have declared for years that the G.O.P. is no longer a normal political party. It doesn’t look anything like, say, Dwight Eisenhower’s Republican Party or Germany’s Christian Democrats. But it bears a growing resemblance to the ruling parties of autocratic regimes.

The only unusual thing about the party’s wholesale adoption of the Leader Principle is that Republicans doesn’t have a monopoly on power; in fact, the party controls neither Congress nor the White House. Politicians suspected of insufficient loyalty to T___ and T___ism in general aren’t sent to the gulag. At most, they stand to lose intraparty offices and, possibly, future primaries. Yet such is the timidity of Republican politicians that these mild threats are apparently enough to make many of them behave like Caligula’s courtiers.

Unfortunately, all this loyalty signaling is putting the whole nation at risk. In fact, it will almost surely kill large numbers of Americans in the next few months.

The stalling of America’s initially successful vaccination drive isn’t entirely driven by partisanship — some people, especially members of minority groups, are failing to get vaccinated for reasons having little to do with current politics.

But politics is nonetheless clearly a key factor: Republican politicians and Republican-oriented influencers have driven much of the opposition to Covid-19 vaccines, in some cases engaging in what amounts to outright sabotage. And there is a stunning negative correlation between T___’s share of a county’s vote in 2020 and its current vaccination rate.

How did lifesaving vaccines become politicized? As Bloomberg’s Jonathan Bernstein suggests, today’s Republicans are always looking for ways to show that they’re more committed to the cause than their colleagues are — and given how far down the rabbit hole the party has already gone, the only way to do that is “nonsense and nihilism,” advocating crazy and destructive policies, like opposing vaccines.

That is, hostility to vaccines has become a form of loyalty signaling.

None of this should be taken to imply that Republicans are the root of all evil or that their opponents are saints . . . But the G.O.P. has become something different, with, as far as I know, no precedent in American history although with many precedents abroad. Republicans have created for themselves a political realm in which costly demonstrations of loyalty transcend considerations of good policy or even basic logic. . . .

Questioning the Power of Five Unelected Judges

It’s human nature to be pleased when decisions go our way and upset when they don’t. This certainly applies to decisions made by the Supreme Court. But there is a basic issue of democracy vs. aristocracy when it comes to the Court’s ability to invalidate or undermine laws passed by elected officials.

A Harvard law professor, Nikolas Bowie, submitted this testimony to the Presidential Commission on the Supreme Court of the United States that Biden created earlier this year. Reprinted in The New York Times, its title was “How the Supreme Court Dominates Our Democracy: Judicial Review Gives Any Five Justices Power Over the Whole Government. Why?”:

The United States calls itself the world’s oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said “We shall overcome” and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time.

Yet the legislation of 1965 wasn’t Congress’s first attempt to build a multiracial democracy. A century earlier, lawmakers enacted a half-dozen laws that protected the right to vote, punished political violence, and banned racial discrimination in public places. But as Frederick Douglass lamented in 1883, those laws were “grievously wounded” and cut down during his lifetime. Their assassin was the Supreme Court.

Striking down the first federal voting rights act, the court wrote “It would . . . be dangerous if the legislature could set a net large enough to catch all possible offenders”. Concerning a White mob that murdered more than 100 Black voters, the court stated that “it does not appear that it was their intent to interfere with any right granted or secured by the constitution”. In 1903, the court held that the federal government was powerless to stop “the great mass of the white population [that] intends to keep the blacks from voting.”

Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority. Yet it appears that the court has reverted to its older ways.

In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.

In the wake of these decisions — as before — Jim Crow laws are reemerging. By declining to enforce federal laws because it disagrees with Congress about whether they’re constitutionally appropriate, the Supreme Court has functioned as an antidemocratic institution that produces antidemocratic results.

In his inaugural address in 1861, President Abraham Lincoln offered perhaps the best argument for why Congress, and not the Supreme Court, should have the final word on what the Constitution requires. The court had just held in its infamous Dred Scott decision that Congress had no power to restrict the spread of slavery. “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the Supreme Court,” Lincoln said, “. . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Lincoln thought that a self-governing people should have the power to determine what their fundamental law meant.

Lincoln’s argument wasn’t that the Constitution shouldn’t be enforced, but rather that Congress was the best institution to enforce it. Most of the Constitution’s limits are vague: The 15th Amendment permits Congress to enact “appropriate legislation” to protect the right to vote, for example, while the Fifth Amendment prohibits Congress from violating the “due process of law.” For as long as these limits have existed, there have been passionate disagreements about what they require. Congress offers a relatively democratic method for resolving these disputes. If people or state governments disagree about a law’s constitutionality, they can campaign to repeal that law.

By contrast, when the Supreme Court decides not to enforce a federal law, the justices in the majority effectively declare that their view is superior to everyone else’s. Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced. This was the scenario in 2013, when five members of the court held that a key section of the Voting Rights Act wasn’t “appropriate legislation.”

Yet no democratic procedure requires the justices to think of themselves as political equals with people who disagree with them. And while later generations of justices can revisit and overturn any of the court’s precedents, everyone else has the formal power to overrule the court only if two-thirds of both houses of Congress and three-quarters of the 50 states approve a constitutional amendment.

Indeed, it’s difficult to explain why, in a democracy, the constitutional interpretation of five justices should be superior to the constitutional interpretation of the elected officials who appointed and confirmed them.

One possible answer is that it’s the court’s job to interpret the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in his famous 1803 opinion in Marbury v. Madison. “The constitution controls any legislative act repugnant to it.” But Marshall’s emphatic response, as one critic put it, “begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.”

A second possible answer is that everyone, the justices included, should follow their own interpretation of what the Constitution requires. But we all expect presidents, federal officials, state officials and even state judges to comply with federal law, regardless of whether they personally believe that the law is constitutional. As Lincoln well knew, it would be profoundly antidemocratic for a member of a state militia or the military to resist federal law. So the question — again — is what makes the justices different?

The only honest answer is that the justices are supposed to be antidemocratic. As Justice Robert Jackson wrote in 1943, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Other scholars have joined him in accepting the “counter-majoritarian difficulty” of judicial review. This perspective concedes that judicial review is antidemocratic — yet necessary for democracy to function properly.

This embrace of a judicial aristocracy affects much of the culture surrounding the Supreme Court. For the past hundred years, nearly every justice has been a graduate of an elite law school. New appointments are generally praised for their brilliance, credentials, professionalism and collegiality. And written briefs, adversarial argument, secretive deliberation, highly educated law clerks and a lack of political accountability are considered tools that allow the justices to resolve fraught questions correctly, even when their interpretations are politically unpopular.

But there is little historical reason to believe there is anything intrinsically correct about the Supreme Court’s constitutional interpretations. No expertise on the planet can determine whether Congress’s 1875 ban on racial discrimination, its 1965 expansion of voting rights, or its 2010 expansion of health insurance is “appropriate” or providing for the “general Welfare.” Resolving those questions requires the same trade-offs among competing principles that a democracy makes when it decides to enact any law. Our democracy suffers when an unelected group of lawyers take away our ability to govern ourselves.

This isn’t to say that Congress hasn’t adopted any horrific laws over the past 250 years. But there are few examples of the Supreme Court intervening in a timely fashion to overturn them. The court was silent at best when Congress violently captured fugitives from slavery, dispossessed Native American tribes, excluded Chinese immigrants, persecuted political dissidents, withheld civil rights from U.S. citizens in territories and interned Japanese Americans. Efforts to remedy these injustices have been achieved not by courts, but by expanding our democracy.

The history of judicial review of federal legislation shows that the principal “minority” most often protected by the court is the wealthy. Wealthy litigants can muster the skills, time, money, influence and capacity to challenge the same legislation over and over in court. For example, in 1895’s Pollock v. Farmers’ Loan and Trust Co., the Supreme Court invalidated a century of precedent to hold that a federal income tax would violate “one of the bulwarks of private rights and private property.” And in 2010’s Citizens United, the court threw out another century of federal campaign finance laws.

The best examples of judicial review working as expected by its proponents are cases such as the 2013 Windsor decision, which invalidated the Defense of Marriage Act of 1996, the 2008 Boumediene decision, which guaranteed minimal due process protections for Guantánamo detainees, and decisions in the 1970s that prohibited Congress from “protecting” women by engaging in sex discrimination. But when these cases are compared with rulings that directly contributed to the rise of Jim Crow, it becomes pretty evident that the court is, at best, no more reliable than Congress as a safeguard of political equality.

Of course, the Supreme Court has advanced democratic equality at the state level, from Brown v. Board in 1954 and Roe v. Wade in 1973 to Obergefell v. Hodges in 2015. But in these cases, federal judges didn’t disagree with Congress about the constitutionality of a federal law. To the contrary, they all enforced a federal law — the Ku Klux Klan Act of 1871. Congress enacted that law in response to Southern officials’ inaction against white supremacists terrorizing Black people. In its current form in the U.S. Code, the Klan Act instructs federal courts to invalidate state actions that violate the Constitution.

As the legal theorist James Bradley Thayer observed over a century ago, when the Supreme Court invalidates a state law, it is doing something far less objectionable than what it does when it refuses to enforce a federal law. In any federal system in which a national government disagrees with a state government, one side has to prevail. There is nothing undemocratic about our system in which the federal government decides who should win.

And when Congress instructs federal courts to preempt state laws — whether with the Klan Act or even with an ordinary federal law — the effect is as consistent with democracy as when President John F. Kennedy instructed federal troops to integrate the University of Mississippi. Either way, the federal government is simply seeking that its commands be enforced.

The situation profoundly changes when the Supreme Court goes rogue. For precisely the same reason that it can be democratic for federal troops to enforce Congress’s interpretation of the Constitution but extremely antidemocratic for them to disregard it, the proper role for federal courts in a democracy is to serve as its agents, not as a countervailing force. Democratic decision-making belongs in the hands of democratic bodies, not people with robes or guns.

Indeed, what a case like Brown actually illustrates is how federal legislation has successfully expanded American democracy when the Supreme Court serves as Congress’s enforcer. As the law professor Michael Klarman has observed, Southern schools remained almost as racially segregated in 1964 as they had been 10 years earlier, when Brown was decided. Formal segregation drew to a close in the South only after Congress enacted the Civil Rights Act and the Voting Rights Act.

Yet both laws stood in the face of Supreme Court precedents that restricted Congress’s power. Because the court continued to hold itself as the supreme interpreter of the Constitution, it had to give Congress permission to evade its own bad precedents . . .
Which returns to the original problem: Why should a court be in charge of a democracy? The answer is: It shouldn’t.

. . . Most of the time, the court gives Congress free rein to act as it pleases. But the justices are quick to pull on the reins when lawmakers move to disrupt hierarchies of wealth or status. Either way, the court arbitrarily dominates Congress: Even when the court is permissive, Congress can make no law without permission.

What makes that domination arbitrary is that the justices themselves are unbridled. Federal laws stand and fall on the votes of nine unaccountable lawyers, all appointed for life because of their educational backgrounds and relationship to the governing elite.

As a result, the political choices available to us as a democracy depend not on our collective will but on the will of people who hold power until they resign or die. This is precisely what the Declaration of Independence protested. As absurd as it was then for a continent to be perpetually governed by an island, it is equally absurd now for a nation of 300 million to be perpetually governed by five Harvard and Yale alumni.

As we debate new legislation to expand the franchise and protect the right to vote, the threat of judicial invalidation has forced our elected representatives to lower their expectations about how democratic our nation can become. In the name of protecting us from the excesses of democracy, the judicial review of federal laws is costing us democracy itself.

The Original Sin

These are the opening and closing paragraphs of a review in The New York Review of Books (the review is “Uncanny Planet” by Mark O’Connor; the book is Second Nature: Scenes from a World Remade by Nathaniel Rich):

In the opening lines of the Bible, having brought forth the world and everything in it, God makes his inaugural address to Adam and Eve. “Be fruitful, and multiply,” he tells them, “and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.” God’s first, foundational decree explicitly casts the relationship between humanity and nature as one of separation and control. The whole sorry business with the serpent, the forbidden fruit, and the banishment doesn’t come about for another two chapters, but if you were in the mood for a little heretical revisionism you might argue, just for fun, that the true original sin can be located not in man’s first disobedience, but in God’s first command.

The attitude toward nature that He defines and sanctifies with those words is, after all, precisely the attitude that led human beings to exploit nature so ruthlessly, and for so long, that the planet is now in danger of becoming unlivable for vast numbers of its inhabitants, both human and nonhuman. Our adherence to this view of the world and our place within it, in other words, has amounted to its own kind of Fall. . . .

[The first line of Stewart Brand’s original Whole Earth Catalog — “We are as gods and we might as well get good at it” —] recalls Francis Bacon’s characterization of his scientific work, and by implication that of the scientific method itself, as rescuing humanity from its fallen state. Bacon saw science and technology as the means by which we could reclaim our former oneness with the divine. The “true ends of knowledge,” he wrote, were in

a restitution and reinvesting (in great part) of man to the sovereignty and power (for whensoever he shall be able to call creatures by their true names he shall again command them) which he had in his first state of creation.

The path of knowledge that led us out of Eden will, if we follow it long enough, eventually lead us back. . . . 

Though Rich’s book is hardly what you’d call a polemic, the stories in it gather toward an argument, which could be seen as a less nakedly utopian version of Bacon’s aims. There are over 7.5 billion of us on a rapidly warming planet; the seas are rising, the forests are burning, and every year hundreds of species go the way of the passenger pigeon. There is no reversing the Fall. There is no going back to whatever might be meant by “nature.” We must become “as gods,” not in order to return to a state of prelapsarian wholeness, but to move forward to some kind of livable future.