Tag Archives: Conservatism

The Supreme Court Has Never Been a Level Playing Field

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The Constitution deserves less respect. So does the Supreme Court. After reviewing the Court’s history as an impediment to progress, Ian Millhiser of Vox argues that “the judiciary is structurally biased in favor of conservatives:

The Court was the midwife of Jim Crow, the right hand of union busters, the dead hand of the Confederacy, and now is one of the chief architects of America’s democratic decline….

Decisions like Dobbs, which commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. [Justice Samuel] Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to develop policies and implement decisions [in favor of] significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only one in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart [a decision that overruled Congress and allowed products made by child labor to cross statelines] was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Simply put, the Supreme Court has not served the American people well. It’s time to start treating it that way.

Unquote.

A similar point can be made regarding the US Senate. Senators who want to leave everything as it is can use the filibuster to kill legislation much more easily than Senators can use it to pass legislation.  

How Democracy May Survive the Constitution

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Among our democracy’s enemies, foreign or domestic, is a document ratified in 1789: the United States Constitution. The power the Constitution gives to the states, its provisions that favor minority rule, and the difficulty of amending it may allow the Republican Party to institute authoritarian, one-party rule, all the while claiming to respect “the supreme law of the land”. 

Two law professors, Ryan Doerfler and Samuel Moyn, argue that it’s time to do something about our broken Constitution: 

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution. [Meanwhile,] the conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President D____ T____’s nominees…. With the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action.

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of anti-politics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

The Right Wing in a Few Words

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Somebody on Twitter, Ethan Grey, who says he’s an ex-Republican, tried to summarize the basic “Republican message on everything of importance”:

1. They can tell people what to do.  2. You cannot tell them what to do.

You’ve watched the Republican Party champion the idea of “freedom” while you have also watched the same party openly assault various freedoms, like the freedom to vote, freedom to choose, freedom to marry who you want and so on.

If this has been a source of confusion, then your assessments of what Republicans mean by “freedom” were likely too generous. Here’s what they mean:

1. The freedom to tell people what to do.  2. Freedom from being told what to do.

When Republicans talk about valuing “freedom”, they’re speaking of it in the sense that only people like them should ultimately possess it.

He cites Covid-19 as a recent example:

We were told by experts in infectious diseases that to control the spread of the pandemic, we had to socially distance, mask, and get vaccinated. So, in a general sense, we were being told what to do. Guess who had a big problem with that.

All Republicans saw were certain people trying to tell them what to do, which was enough of a reason to insist that they would not be told what to do. Even though what they were told to do would save lives, including their own.

Another instance:

They claim to be for “small government”, but that really means government that tells them what to do should be as small as possible. But when [they see] an opportunity to tell people what to do, the government required for that tends to be large.

My favorite example of this is how Republicans hate government spending unless it’s for the “Defense” Department, which gets an enormous percentage of the federal budget and is the part of our government best positioned to forcefully tell other people (i.e. the rest of the world) what to do. But parts of the government that can tell Republicans what to do, like the Internal Revenue Service (pay your taxes) and the Environmental Protection Agency (stop polluting), should be starved of funds whenever possible (or abolished, like the Department of Education).

Maybe a Republican could complain about Democrats in the same way — we want to tell them what to do but we don’t want them telling us — but I’m hard-pressed to think of Democratic behavior that fits.

Anyway, Frank Wilhoit, a classical music composer, once tried to summarize conservatism too. This is sometimes called “Wilhoit’s Law”:

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

It’s really the same point Mr. Grey made on Twitter. In fact, Grey offered his own, less elegantly stated, version of Wilhoit’s Law further down in his thread:

1. There are “right” human beings and there are “wrong” ones.  2. The “right” ones get to tell the “wrong” ones what to do.  3. The “wrong” ones do not tell the “right” ones what to do.

Thus, we have various ways to summarize what’s been called “the hypocrisy and moral bankruptcy of the modern Republican Party”. Take your pick.

Not 1930s Germany, But 1820s Britain

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Prof. Corey Robin, author of The Reactionary Mind, doesn’t see our former president as a political strongman, the harbinger of an American brand of fascism. He sees the Republican Party using the Constitution to hold the line against the majority’s desire for progress, and therefore truly conservative. From The New Yorker:

. . . Fascism called the young to the cause of novelty and creation. Today’s right is nothing like that. It is an artifact of the world’s most ancient and extant legal order, holding on to the Constitution, and the institutions it authorizes, for dear life. . . .

. . . Seeking to counter their waning position, the Republican Party and the conservative movement have come to depend upon three pillars of counter-majoritarian rule: the Senate, the Electoral College, and the Supreme Court. These institutions are not authoritarian or fascist—indeed, they are eminently constitutional—but they are antidemocratic. They are also mainstays of the right. In a remarkable statement, now forgotten, issued three days before January 6th, seven conservative members of the House warned their colleagues that [Republican] presidential candidates have

depended on the electoral college for nearly all presidential victories in the last generation. If we perpetuate the notion that Congress may disregard certified electoral votes—based solely on its own assessment that one or more states mishandled the presidential election—we will be delegitimizing the very system that led [our party] to victory in 2016, and that could provide the only path to victory in 2024.

The current moment is less reminiscent of the last days of Weimar than of Britain in the years before the Reform Act of 1832. With a scheme of representation dating back to the twelfth century, Parliament was the playground of grandees from rural and sparsely populated regions of the South. Growing cities in the Midlands and the North had no representation at all.

Standing atop this “aristocracy of mere locality,” in the words of the historian and Whig politician Thomas Macaulay, were the Tories. For six decades, virtually without interruption, they leveraged this Senate-like system of rotten boroughs to keep the Whigs out of power, enabling an increasingly isolated group of aristocrats and gentry to maintain their privileges. While “the natural growth of society went on” among the middle classes and in the cities, Macaulay said, “the artificial polity continued unchanged.”

Other features of this system will sound familiar. Polling places were few and far between; one of the leading items on the reform agenda was to increase their number. Electoral laws were so byzantine, and generated results so murky, that an army of well-paid lawyers was on the payroll for years, sorting out the returns and arguing over their validity. The “artificial polity” kept politics frozen in time, discouraging both parties from taking up vital economic questions of the day, and preventing new social forces and the partisan realignment that was eventually to come . . .

They Merely Want To Protect Themselves and What’s Theirs

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This is by an NBC News reporter, Ben Collins, who jokes that he works the “dystopia beat”:

What people say on Facebook and in comments sections is what they actually mean. The comments section may be our id, but social media networks exclusively target our id with a nonstop barrage of fear and hatred. . . .

I did this story over the summer about two women who became minor celebrities because of viral QAnon tirades. . . . Before the pandemic, they weren’t particularly political. By the summer, they were throwing masks on the ground at Target or calling their county commissioners pedophiles who needed to be executed.

. . . During the pandemic, some people lost their jobs. Others lost their ritualized social lives, real-life brunches or bowling leagues or church. . . So with the time they used to spend at work or church or with their family, they filled it with Instagram and Facebook. Extremist movements from QAnon to anti-vaxxers had been waiting for this precise moment for years and they pounced.

Algorithms catered to our worst fears, and “otherized” anyone who didn’t look and think exactly like you to the point of literal demonization. By demonization, I mean your newsfeed was telling you that Democrats are literal, child-eating Satanists.

In turn, social media created a world you could control: Bad guys were creating the pandemic, shutting down the economy, and you had secret knowledge that could stop it. It fed you autonomy and identity . . .

It was extremely alluring to so many people, and people in power winked at it for months. [Many of us] know someone who overtly believes this stuff. Many other entertained it, or believe pieces or variations of it. They brought it to the ballot box with them.

The QAnon Karen who destroyed [a display of masks at] Target realizes she was a victim of social media brainwashing, and she’s trying to stop it. But . . . she had a multi-million person intervention on Twitter. As our parents or friends or siblings get radicalized in less public ways, there’s no one there to step in.

I’m inundated with people asking for help, saying their family members need resources for someone in their life who has recently become divorced from reality and militant because of extraordinarily comforting lies on social media.

They want to know why people aren’t taking this more seriously and why we can’t quantify these things. Well, we can’t quantify these things because social media networks don’t want people to know how bad this problem is . . .

There are so many people out there earnestly struggling right now . . . They are being fed lies for power and profit. Its no wonder they believe them. . . . We need to take their emotions as seriously as the people manipulating them have been for the last ten years.

Unquote.

Of course, there are millions of people struggling who aren’t tempted by bizarre right-wing conspiracy theories, or conspiracy theories at all. What might distinguish the people who are?

John Hibbing, a professor of political science at the University of Nebraska, published a book this year called The Securitarian Personality: What Really Motivates Txxxx’s Base. This is from the publisher’s site:

The Authoritarian Personality, . . . published by Theordor Adorno and a set of colleagues in the 1950s, was the first broad-based empirical attempt to explain why certain individuals are attracted to the authoritarian, even fascist, leaders that dominated the political scene in the 1930s and 1940s. Today, the concept has been applied to leaders ranging from Txxxx to Viktor Orban to Rodrigo Duterte. But is it really accurate to label Txxxx supporters as authoritarians?

In The Securitarian Personality, John R. Hibbing argues that an intense desire for authority is not central to those constituting Txxxx’s base. Drawing from participant observation, focus groups, and especially an original, nationwide survey of the American public that included over 1,000 ardent Txxxx supporters, Hibbing demonstrates that what Txxxx’s base really craves is actually a specific form of security.

His supporters do not strive for security in the face of all threats, such as climate change, Covid-19, and economic inequality, but rather only from those threats they perceive to be emanating from human outsiders, defined broadly to include welfare cheats, unpatriotic athletes, norm violators, non-English speakers, religious and racial minorities, and certainly people from other countries. The central objective of these “securitarians” is to strive for protection for themselves, their families, and their dominant cultural group from these embodied outsider threats.

Unquote.

The publisher could have said they strive for protection from outsider threats, real or imaginary. The point is that they feel threatened by those they view as outsiders, those who have been “otherized” (using the NBC reporter’s term). And once you view your fellow citizens as outsiders, it’s easy to mistrust everything they say and do. The standard Democratic rhetoric about us all being in this together and providing opportunity for everybody sounds like an attack to them.

Thus, we hear from an older couple who live in Mason, Texas, 50 miles east of Austin. They’re deeply concerned about immigrants and protesters, as if their isolated town with a population of 2,000 is on the frontlines of the culture wars:

Ms. Smith, 67, and her husband, Dennis, 69, tied their unequivocal support for the president — even in defeat — to larger cultural concerns.

Like Mr. Biden and his supporters, the Smiths saw this election as a battle for the country’s soul. To unify with Mr. Biden would be an admission that the battle is lost, and that the multicultural tide powering his victory will continue its ascension.

“Everything I worked for, Biden wants to give to the immigrants to help them live, when they don’t do nothing but sit on their butts,” Mr. Smith said.

“And if those protesters come here, if they go tearing up stuff, I guarantee you they won’t be in this town very long,” he added. “We’ll string them up and send them out of here . . .Â