Understanding How We Got Here, or How a Defunct Economist Would Make Us Slaves

As Christmas approaches, why not spend a few minutes reading about the little-known economist who did so much to burden America and other countries with a brand of economics and politics that would have warmed Scrooge’s cold, cold heart? Lynn Parramore of the Institute for New Economic Thinking wrote about him in 2018:

Ask people to name the key minds that have shaped America’s burst of radical right-wing attacks on working conditions, consumer rights and public services, and they will typically mention figures like free market-champion Milton Friedman, libertarian guru Ayn Rand, and laissez-faire economists Friedrich Hayek and Ludwig von Mises.

James McGill Buchanan is a name you will rarely hear unless you’ve taken several classes in economics. And if [Buchanan] were alive today, it would suit him just fine that most well-informed journalists, liberal politicians, and even many economics students have little understanding of his work.

The reason? Duke historian Nancy MacLean contends that his philosophy is so stark that even young libertarian acolytes are only introduced to it after they have accepted the relatively sunny perspective of Ayn Rand. (Yes, you read that correctly). If Americans really knew what Buchanan thought and promoted, and how destructively his vision is manifesting under their noses, it would dawn on them how close the country is to a transformation most would not even want to imagine, much less accept.

That is a dangerous blind spot, MacLean argues in a meticulously researched book, Democracy in Chains

Buchanan … started out as a conventional public finance economist. But he grew frustrated by the way in which economic theorists ignored the political process. He began working on a description of power that started out as a critique of how institutions functioned in the relatively liberal 1950s and ‘60s… Buchanan, MacLean notes, was incensed at what he saw as a move toward socialism and deeply suspicious of any form of state action that channels resources to the public. Why should the increasingly powerful federal government be able to force the wealthy to pay for goods and programs that served ordinary citizens and the poor?

In thinking about how people make political decisions and choices, Buchanan concluded that you could only understand them as individuals seeking personal advantage. In an interview cited by MacLean, the economist observed that in the 1950s Americans commonly assumed that elected officials wanted to act in the public interest. Buchanan vehemently disagreed…

His view of human nature was distinctly dismal. Adam Smith saw human beings as self-interested and hungry for personal power and material comfort, but he also acknowledged social instincts like compassion and fairness. Buchanan, in contrast, insisted that people were primarily driven by venal self-interest. Crediting people with altruism or a desire to serve others was “romantic” fantasy: politicians and government workers were out for themselves, and so, for that matter, were teachers, doctors, and civil rights activists. They wanted to control others and wrest away their resources: “Each person seeks mastery over a world of slaves,” he wrote in his 1975 book, The Limits of Liberty.

Does that sound like your kindergarten teacher? It did to Buchanan.

The people who needed protection were property owners, and their rights could only be secured though constitutional limits to prevent the majority of voters from encroaching on them… MacLean observes that Buchanan saw society as a cutthroat realm of makers (entrepreneurs) constantly under siege by takers (everybody else) His own language was often more stark, warning the alleged “prey” of “parasites” and “predators” out to fleece them.

In 1965 the economist launched a center dedicated to his theories… MacLean describes how he trained thinkers to push back against the Brown v. Board of Education decision to desegregate America’s public schools… She notes that he took care to use economic and political precepts, rather than overtly racial arguments, to make his case, which nonetheless gave cover to racists who knew that spelling out their prejudices would alienate the country….

[Buchanan] focused on how democracy constrains property owners and aimed for ways to restrict the latitude of voters. [MacClean] argues that unlike even the most property-friendly founders Alexander Hamilton and James Madison, Buchanan wanted a private governing elite of corporate power that was wholly released from public accountability.

Suppressing voting, changing legislative processes so that a normal majority could no longer prevail, sowing public distrust of government institutions— all these were tactics toward the goal….

In nurturing a new intelligentsia to commit to his values, Buchanan stated that he needed a “gravy train,” and with backers like Charles Koch and conservative foundations like the Scaife Family Charitable Trusts, others hopped aboard. Money, Buchanan knew, can be a persuasive tool in academia. His circle of influence began to widen….

MacLean describes how the economist developed a grand project to train operatives to staff institutions funded by like-minded tycoons, most significantly Charles Koch, who became interested in his work in the ‘70s… Koch, whose mission was to save capitalists like himself from democracy, found the ultimate theoretical tool in [Buchanan’s] work. [MacClean] writes that Koch preferred Buchanan to [conservative economist] Milton Friedman and his “[University of]Chicago boys” because, she says, quoting a libertarian insider, they wanted “to make government work more efficiently when the true libertarian should be tearing it out at the root.”

With Koch’s money and enthusiasm, Buchanan’s academic school evolved into something much bigger. By the 1990s, Koch realized that Buchanan’s ideas — transmitted through stealth and deliberate deception, as MacLean amply documents — could help take government down through incremental assaults that the media would hardly notice. The tycoon knew that the project was extremely radical, even a “revolution” in governance, but he talked like a conservative to make his plans sound more palatable.

MacLean details how partnered with Koch, Buchanan’s [center] at George Mason University was able to connect libertarian economists with right-wing political actors and supporters [at] corporations like Shell Oil, Exxon, Ford, IBM, Chase Manhattan Bank, and General Motors. Together they could push economic ideas to the public through media, promote new curricula for economics education, and court politicians in nearby Washington, D.C.

… MacLean recounts that Buchanan … focused on such affronts to capitalists as environmentalism and public health and welfare, expressing eagerness to dismantle Social Security, Medicaid, and Medicare as well as kill public education because it tended to foster community values. Feminism had to go too…

Buchanan’s ideas began to have huge impact, especially in America and in Britain….The economist was deeply involved in efforts to cut taxes on the wealthy in 1970s and 1980s and he advised proponents of Reagan Revolution in their quest to unleash markets and posit government as the “problem” rather than the “solution.” The Koch-funded Virginia school coached scholars, lawyers, politicians, and business people to apply stark right-wing perspectives on everything from deficits to taxes to school privatization. In Britain, Buchanan’s work helped to inspire the public sector reforms of Margaret Thatcher and her political progeny.

To put the success into perspective, MacLean points to the fact that [law professor] Henry Manne, whom Buchanan was instrumental in hiring, created legal programs for law professors and federal judges which could boast that by 1990 two of every five sitting federal judges had participated. “40 percent of the U.S. federal judiciary,” writes MacLean, “had been treated to a Koch-backed curriculum.”

MacLean illustrates that in South America, Buchanan was able to first truly set his ideas in motion by helping a bare-knuckles dictatorship ensure the permanence of much of the radical transformation it inflicted on [Chile], a country that had been a beacon of social progress. The historian emphasizes that Buchanan’s role in the disastrous Pinochet government …has been underestimated partly because unlike Milton Friedman, who advertised his activities, Buchanan had the shrewdness to keep his involvement quiet.

The dictator’s human rights abuses and pillage of the country’s resources did not seem to bother Buchanan, MacLean argues, so long as the wealthy got their way. “Despotism may be the only organizational alternative to the political structure that we observe,” the economist had written in The Limits of Liberty….

[MacClean] observes that many liberals have missed the point of strategies like privatization. Efforts to “reform” public education and Social Security are not just about a preference for the private sector over the public sector, she argues. You can wrap your head around those, even if you don’t agree. Instead, MacLean contends, the goal of these strategies is to radically alter power relations, weakening pro-public forces and enhancing the lobbying power and commitment of the corporations that take over public services and resources, thus advancing the plans to dismantle democracy and make way for a return to oligarchy. The majority will be held captive so that the wealthy can finally be free to do as they please, no matter how destructive.

MacLean argues that despite the rhetoric…, shrinking big government is not really the point. The oligarchs require a government with tremendous new powers so that they can bypass the will of the people. This, as MacLean points out, requires greatly expanding police powers “to control the resultant popular anger”…

Could these right-wing capitalists allow private companies to fill prisons with helpless citizens—or, more profitable still, rights-less undocumented immigrants? They could, and have. Might they engineer a retirement crisis by moving Americans to inadequate 401(k)s? Done. Take away the rights of consumers and workers to bring grievances to court by making them sign forced arbitration agreements? Check. Gut public education to the point where ordinary people have such bleak prospects that they have no energy to fight back? Getting it done.

Would they even refuse children clean water? Actually, yes. MacLean notes that in Flint, Michigan, Americans got a taste of what the emerging oligarchy will look like… There, the Koch-funded Mackinac Center pushed for legislation that would allow the governor to take control of communities facing emergency and put unelected managers in charge. In Flint, one such manager switched the city’s water supply to a polluted river…Tens of thousands of children were exposed to lead…

Economist Tyler Cowen has provided an economic justification for this kind of brutality, stating that where it is difficult to get clean water, private companies should take over and make people pay for it. “This includes giving them the right to cut off people who don’t—or can’t—pay their bills”…

Research like MacLean’s provides hope that toxic ideas like Buchanan’s may finally begin to face public scrutiny. Yet at this very moment, the Kochs’ State Policy Network and the American Legislative Exchange Council (ALEC), a group that connects corporate agents to conservative lawmakers to produce legislation, are involved in projects that the … media hardly notices, like pumping money into state judicial races. Their aim is to stack the legal deck against Americans in ways that MacLean argues may have even bigger effects than Citizens United, the 2010 Supreme Court ruling which unleashed unlimited corporate spending on American politics. The goal is to create a judiciary that will interpret the Constitution in favor of corporations and the wealthy in ways that Buchanan would have heartily approved.

“The United States is now at one of those historic forks in the road whose outcome will prove as fateful as those of the 1860s, the 1930s, and the 1960s,” writes MacLean. “To value liberty for the wealthy minority above all else and enshrine it in the nation’s governing rules, as [Buchanan] called for and the Koch network is achieving, play by play, is to consent to an oligarchy in all but the outer husk of representative form.”

Unquote.

For the record, quoting John Maynard Keynes:

The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.

Especially if billionaires are spreading the scribbler’s ideas.

If You Can Keep It

A headline from the New York Times:

Voters See Democracy in Peril, but Saving It Isn’t a Priority

That’s the conclusion they drew from their latest poll. They should have said it’s not the highest priority, but headline writers aren’t known for accuracy.

In this poll, they asked registered voters “What do you think is the MOST important problem facing the country today?” Forty-five percent of the registered voters said that either “the economy (including jobs, stock market)” or “inflation or the cost of living” are the biggest problem (26% picked the economy and 19% picked inflation).

It’s not clear why anybody would say the economy is our biggest problem. Job growth has been excellent since the pandemic eased. Average wages have increased. Store shelves aren’t empty. But we don’t know where those voters get their news, so it’s hard to know what myths they accept. Some probably equate the stock market with the economy (like the people who wrote that question for the poll), while others are upset by their portfolios going down (after going up for so long).

It’s true that inflation is a problem (for some people more than others) and it’s in the news a lot, so it makes sense that 1 in 5 registered voters said it’s the country’s biggest concern at the moment. Presumably, when inflation slows down, probably next year, it won’t bother them so much. For context, it’s worth noting that of the world’s 23 leading economies, the U.S. has an inflation rate near the middle (9 countries have higher inflation and 13 have lower). The Federal Reserve is responding to inflation aggressively, but current inflation is a global phenomenon.

So what about democracy being “in peril”? It was the third most popular answer at 9%. Unfortunately, given what’s going on these days, that 9% is less than reassuring. Roughly half of that 9% thought it’s the Democrats who are attacking our democracy. The Big Lie is now gospel for Republicans, including most of them running for office this year (In case you’re wondering, climate change only got 3%.)

Since the state of the economy tends to determine election results and majority parties tend to lose midterm elections, things don’t look good for the Democrats next month unless women, reacting to our renegade Supreme Court, turn out in record numbers.

All of which leads me to ask: how did we get to a place where half the country prefers a party led by an ex-president who tried to overturn the last election — and on top of that is a truly horrible person? And on top of that is dedicated to bringing back the 1950s (except for that decade’s high taxes on the rich), when anybody who wasn’t a white, supposedly Christian man was treated like a second-class citizen?

Jamelle Bouie of The New York Times thinks this situation isn’t all that strange:
“The U.S. Thinks It Can’t Happen Here. It Already Has”. After slavery was finally abolished and we’d killed enough American Indians, there was the legalized oppression of Jim Crow

If we date the beginning of Jim Crow to the 1890s — when white Southern politicians began to mandate racial separation and when the Supreme Court affirmed it — then close to three generations of American elites lived with and largely accepted the existence of a political system that made a mockery of American ideals of self-government and the rule of law….

For most of this country’s history, America’s democratic institutions and procedures and ideals existed alongside forms of exclusion, domination and authoritarianism. Although we’ve taken real strides toward making this a less hierarchical country, with a more representative government, there is no iron law of history that says that progress will continue unabated or that the authoritarian tradition in American politics won’t reassert itself.

That’s all true, but I’d look to more recent history to understand when our democracy began to weaken. It was baby-faced provocateur Newt Gingrich who taught his fellow Republicans to demonize Democrats using words like “traitor”, “sick” and “anti-child” (he actually sent them a memo in 1996). Then there was the fervid search for a way to use the legal system to remove Bill Clinton from office. The national media helped in the 2000 campaign by portraying unexceptional George W. Bush as a regular guy and Al Gore as a lying robot, but it was the Republican majority on the Supreme Court who used Bush v. Gore to make sure their side won. Lots of Republicans never accepted Obama as president, believing that somebody like him wasn’t really an American. He won two elections, but Senate Republicans denied him the ability to add a Democrat to the Supreme Court. We then had the farcical 2016 campaign, when the biggest story in America was Hillary Clinton’s email server and the Republican FBI director decided to intervene at the last moment. Enough of us were disgusted by four years of a president with no redeeming qualities to deny him a second term, but a recent poll suggests he’d beat Joe Biden in 2024.

So we’re left with one of our major parties not accepting the results of an election, using a Supreme Court full of ideologues to take away our rights, aching to put a semi-fascist authoritarian back in the White House (assuming, I suppose, that he’s not under house arrest) and planning to make America worse in a number of ways if they get the chance.

If you want to know more about their plans, read “Our Institutions Will Not Save Us From Republican Authoritarianism”, subtitled “If the [Republican Party] wins in 2022 and 2024, here’s how it’ll capture Congress, the courts, and the executive branch to make America into Hungary” or “Kari Lake’s Candidacy [in Arizona] Shows Us How Democracy Self-Destructs”, which includes the following:

Marx used to say that capitalism contained the seeds of its own destruction…. No—it turns out that it’s actually democracy that contains the seeds of its own destruction. If the people who want a “Christian” nation with no secure voting rights and a weak independent press get 51 percent of the votes, they can impose that and more on the rest of us.

I sometimes think it’s mainly a matter of how people get the news. My main sources of political news are The Washington Post, The Guardian, The New York Times and a few independent journalists. It’s hard to believe that many decent human beings would want today’s Republican Party to be in charge of anything if they knew more. If, for example, they didn’t listen to people who tell them stories like this: schools are installing litter boxes for children who identify as cats. But lots of decent people don’t read The Washington Post. They watch Fox News and listen to talk radio instead.

That’s where we are and where we might be going. It’s like the man supposedly said back in 1789, according to the notes of James McHenry, a Maryland delegate to the Constitutional Convention. Mr. McHenry wrote:

A lady asked Dr. Franklin, Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.  

God Help Us

There’s a big, big difference between being a true follower of Jesus of Nazareth and calling yourself a “Christian”. Putting that aside, the percentage of Americans who say they’re Christians has been going down, while those who claim to be have become more more fervid in their political beliefs.

[According to the Pew Research Center,] since the 1990s, large numbers of Americans have left Christianity to join the growing ranks of U.S. adults who describe their religious identity as atheist, agnostic or “nothing in particular.” This accelerating trend is reshaping the U.S. religious landscape….

The Center estimates that in 2020, about 64% of Americans, including children, were Christian. People who are religiously unaffiliated, sometimes called religious “nones,” accounted for 30% of the U.S. population. Adherents of all other religions – including Jews, Muslims, Hindus and Buddhists – totaled about 6%.

Depending on whether religious switching continues at recent rates, speeds up or stops entirely, the projections show Christians of all ages shrinking from 64% to between a little more than half (54%) and just above one-third (35%) of all Americans by 2070. Over that same period, “nones” would rise from the current 30% to somewhere between 34% and 52% of the U.S. population.

Brynn Tannehill, writing for The New Republic, considers what that may mean for our politics:

As American youths leave home, they leave the faiths of their parents and never return. This is in great part because the teachings of most churches in the U.S. are fundamentally at odds with what young people believe: particularly on topics like abortion, marriage equality, birth control, and premarital sex. They simply fail to see how such out-of-touch institutions are relevant….

The most crucial factor is how Christianity has slowly become primarily a political identity for many (overwhelmingly conservative) people. Over the past 40 years, membership in nice, bland, mainline Protestantism has plummeted, from 30 percent of the public down to 10 percent. Conversely, evangelical membership (and the number of white evangelicals) boomed in the 1970s and ’80s and then slowly declined. But evangelical groups are still much larger than the mainline Protestant denominations, constituting about 23 percent of adults and up to 37 percent of Americans claiming to be “born again.” Because white evangelicals are one of the most consistently conservative groups in the country, the result is that people who identify as Christian or attend church frequently are far more likely also to identify as Republican.

Black churches have held steady for decades at about 8 percent of the population. They are still associated with social justice goals, but they can also tend toward social conservatism, which can produce tension….Latinos were traditionally part of the Catholic Church. However, traditionally white evangelical denominations have had some luck luring Latinos away with social conservatism and the false machismo projected by Republicans, which explains some of the electoral shift seen in 2020.

Just as those who attend church frequently tend to be Republican, the converse is also true: Those with no religion are far more likely to be Democrats. Data analysis by Ryan Burge shows that white evangelicals have had a stranglehold on the [Republican Party] for over two decades and form a clear majority, alongside conservative Catholics. However, by 2018, the “nones” represented a plurality (28 percent) of Democrats, whose gains have come at the expense of evangelicals, mainlines, and Catholics within the party. Today, almost half of Gen Z has no religion….

A 2017 survey of 2,002 U.S. adults age 23 to 30 who attended a Protestant church … in high school found that 66 percent had stopped attending church. Seventy percent of those cited religious, ethical, or political beliefs for dropping out. Other major reasons cited included hypocrisy, churches being judgmental, and a lack of anything in common with other people at the church.

The danger of this widening schism is not a lack of shared sense of community, or people not doing enough charitable work. The danger lies in this creating the conditions for a future that looks more like present-day Russia or Iran.

Conservative Christians have a deep sense of victimhood and fear about a secular America and are willing to end democracy to prevent it. As David Frum noted, “If conservatives become convinced that they cannot win democratically, they will not abandon conservatism, they will abandon democracy.”

It has not gone unnoticed that Republicans are increasingly claiming the mantle of being Christian Nationalists. A recent poll found that although 57 percent of Republicans recognize that declaring the U.S. a “Christian nation” is unconstitutional, over 60 percent would support it….

Tannehill then cites two current instances of conservative (or reactionary) religion being combined with political power. They’re worst case scenarios for America:

First there is the Russian Orthodox Church, headed by Patriarch Kirill. He’s been one of Vladimir Putin’s most loyal allies and has been willing to put the church’s blessing on virtually anything Putin does. This includes supporting Russian actions in Ukraine in the name of stamping out the corrupting Western influence of homosexuality and protecting the Russky mir (Russian world). More recently, he has declared that dying in battle washes away all of one’s sins…. On top of the fascism, Russian Orthodox church leaders have made themselves obscenely wealthy by supporting Putin’s kleptocracy.

What we’re seeing in Iran is what happens when a sclerotic, gerontocratic, authoritarian theocracy tries to impose its will on a younger population that no longer accepts the legitimacy of the government and also rejects some of its core religious teachings. Protests erupted over 22-year-old Mahsa Amini being tortured and killed by “morality police” for wearing her hijab the “wrong” way. Women have responded by tearing off their head scarves and burning them. Men have attacked police, and riots have racked the country for weeks. The internet has been shut down, and at least 75 people have been killed so far. The Iranian regime has reportedly lost control of a predominantly Kurdish town on the border as well.

Unquote.

For millions of Americans, Christianity has become a political identity that favors the creation of a single-party, single-religion theocracy. Russia and Iran demonstrate where that can lead, either to becoming “a corrupted tool of fascism (as in Russia) or an oppressive, omnipresent force (as in Iran) against which the population can achieve change only through revolution”.

It’s Not Enough To Show They’re Wrong

Federal judge Reed O’Connor, a gift to America from George W. Bush, is always a good bet to rule against Democratic policies. Right-wing lawyers seek him out for just this purpose. When this happened today, therefore, it shouldn’t have been a surprise:

A federal judge in Texas on Wednesday ruled that the government cannot require a Christian-owned company to cover HIV preventative medication because it violates their religious rights under federal law.

HIV PrEP — which is more than 90% effective in preventing the transmission of HIV — is recommended for adults who are at high risk of getting HIV, which includes [but is not limited to] men who have sex with other men.

The plaintiffs in the case — six individuals and two Christian-owned businesses, Braidwood Management and Kelley Orthodontics — had argued that they should not be mandated to offer coverage of HIV PrEP because they did not want to encourage “homosexual behavior.”

Earlier this week, of course, Judge Aileen Cannon, a gift from the previous president, broke new legal ground by interfering with a criminal investigation of a private citizen (i.e. the previous president) because being investigated for theft of highly sensitive government documents could hurt this private citizen’s reputation.

It isn’t enough to simply point out how bad — actually, how illegal — decisions like these are. Two writers for Slate have a much better idea:

If the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before [Republican] judges, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.

It is not a stand-alone answer to point out that Cannon was a T____ pick—a member of the extremely not-neutral Federalist Society, seated after T____ lost the election—or that the former president’s lawyers forum-shopped in order to get this case in front of her. It also doesn’t help to note that Cannon herself acknowledged the proper venue to adjudicate the executive privilege claims made in this case (which are on their face absurd) is in fact in a different court in [the District of Columbia] where Cannon has no jurisdiction and where T____ did not make his case. Nor is it an answer to note that federal judges have literally no constitutional authority to stop an ongoing criminal investigation in its tracks, as Cannon purported to do, rendering her decision an imperious assault on the separation of powers. That, too, is an accurate description of the problem. Stating that, too, is not a solution.

Until and unless those of us who are shocked and horrified at lawless rulings by lawless [right-wing] judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of [these] lifetime-appointed hacks for many decades.

There are solutions out there for the problem of runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named [D____ T____]) often face years long court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of T____ism  [and others]. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

There are other worthy ideas too. Term limits for justices and lower court judges. Limits on courts’ jurisdiction to strike down democratically enacted laws. Modest reforms that restrict the Supreme Court’s ability to suppress voting rights before an election. Let’s hear them all. (God knows Biden’s court reform commission studied them extensively, to little end.)

But the chorus from the left, the middle, and the sane right that the lawlessness is lawless only affirms that we cannot ever escape this closed loop of [renegade] judges. Being really mad but doing nothing to change things is a terrible strategy for democracy and for public confidence in the courts. It creates the illusion that if we work really hard to debunk corrupt rulings, we can force [these] judges to see the light, or feel shame, or do something different. Meanwhile, the targets of our meticulous takedowns laugh at the pains we take to prove them wrong. They. Do. Not. Care.

We get it. Lawyers are trained to lawyer. But if you are lawyering within a system you believe to be broken, or immoral, or lawless, and you aren’t standing up with meaningful fixes for that system, you are, fundamentally, acceding to that lawlessness. It is a moral victory to point out the errors, but it’s also a tacit concession that the system is, in fact, legitimate, no matter how low it may go…..

There are too many things wrong with the Cannon order to litigate. And there are too many things wrong with [the right’s] judicial dominion of every part of our lives— for years to come—to litigate. So maybe it’s time to stop litigating them and start fixing them.