Tag Archives: Creeping Authoritarianism

Some Perspective on the Renegade Supreme Court Majority

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We know they’re corrupt, but are they so out of the ordinary? David Cole is a law professor and the legal director of the ACLU. These are excerpts from a longer article from the New York Review of Books:

Over the course of the Supreme Court’s 232-year history, 110 men and six women have served as justices. Just a small handful of them have been “originalists,” holding the view that the only appropriate way to interpret the Constitution is to ask how its provisions were specifically understood at the time they were adopted. But in 2020 that handful became, for the first time, a majority of the Court when Amy Coney Barrett was confirmed, joining fellow originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. (Chief Justice John Roberts is sometimes an originalist and sometimes not.) During the 2020–2021 term—Barrett’s first—the Court proceeded cautiously, mostly seeking consensus across ideological lines through narrow decisions.

But this past term, which concluded on June 30, these five individuals abandoned caution and exerted their newfound authority like few justices ever have. The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required Maine to fund religious education and a Washington State public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.

In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” [schools for blacks and whites] and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this past term, the new majority aggressively applied originalism to disastrous effect, and only they know how far they will go.

The biggest case of the term, and thus far of the century, was Dobbs v. Jackson Women’s Health Organization, in which five justices, including all three of [the previous president’s] nominees—Gorsuch, Kavanaugh, and Barrett—voted to overrule Roe v. Wade and about twenty other Supreme Court cases that had followed and applied Roe over nearly half a century. Dobbs will almost certainly be included among the Court’s worst decisions in history. Never has the Court eliminated a constitutional right so central to the equality and autonomy of half the nation. And never has the Court overturned precedent on such a transparently thin basis….

The majority’s conclusion that Roe was “egregiously wrong” rested on its view that the only appropriate way to interpret the Constitution is by reference to its “original understanding.” But there is another way to read the Constitution. It’s sometimes called the “living Constitution” or “common-law constitutionalism,” and it is the method used by virtually every justice in the Court’s history other than the five in the Dobbs majority, the late Antonin Scalia, and sometimes Chief Justice Roberts. Under that approach, the Court starts with the text of the Constitution but recognizes that its broad, open-ended terms—such as “liberty,” “due process,” and “equal protection”—were designed to evolve over time, through the accretion of precedent, the articulation of principle and fundamental norms, and reasoning by analogy. Under that approach, Roe is not “egregiously wrong” but plainly correct.

In a series of decisions over the last century, the Court has interpreted “liberty” in the Fourteenth Amendment in this way, and not exclusively by reference to its original understanding or “history and tradition.” It has relied on the provision to bar stomach-pumping to search for drugs and forced sterilization, and to protect the rights to use contraception, to marry someone of a different race or the same sex, to choose how to educate one’s children, and to engage in consensual sexual relations with adults of one’s own sex, despite the fact that none of these rights is expressly provided in the Constitution. The right to choose whether to bear a child is of a piece with these decisions and is therefore protected for the same reason. Roe is “egregiously wrong,” then, only if the methodology used by virtually every justice to have ever served on the Court is egregiously wrong….

Overturning precedent requires more than a determination that the prior ruling is wrong, because otherwise the Constitution would change each time the makeup of the Court does. Justice Alito conceded that the Court must also ask whether people have relied on the prior ruling before overturning it. But he callously dismissed such concerns… This is stunningly obtuse….While the majority opinion in Dobbs declared that “the most striking feature of the dissent is the absence of any serious discussion of the States’ interest in protecting fetal life,” the dissent quoted the majority’s own language back at it: “‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women.”

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court similarly elevated adherence to a crabbed view of history over both standard constitutional methodology and present-day reality….By the increasingly common margin of 6–3, struck down a New York law dating from 1911 that required individuals to demonstrate that they had a need to carry a gun in public before they could be licensed to do so….

The Second Amendment did not even protect an individual right to own a gun until the Court’s District of Columbia v. Heller decision in 2008. Before then, the courts, the Justice Department, and historians had long viewed the Second Amendment as protecting only the rights of states to field a militia, as a check on federal tyranny. In Heller, after a long and carefully orchestrated campaign by the National Rifle Association, the Supreme Court for the first time announced that the Second Amendment protected an individual right to possess a firearm in one’s home for self-defense…..At the time, however, the Court reassured the public that the Second Amendment right was not absolute and was subject to reasonable regulations…..

In Bruen, however, the Court went much further. In a decision written by Justice Thomas, it announced that the only gun regulations that the Constitution permits are those that have a direct analogue in laws that existed in the eighteenth century, when the Second Amendment was adopted, or possibly the nineteenth century, when Congress adopted the Fourteenth Amendment….In the absence of a specific historical precedent, any restrictions on the right to bear arms are unconstitutional—no matter how serious the threat guns pose to public safety or how reasonable the regulation…..

The Court’s approach is contrary to common sense, constitutional precedent, and the very history it purports to rely upon. Most fundamentally, why should states in the twenty-first century be limited to what states did centuries earlier, particularly when conditions have radically changed?

… The particular historical approach Justice Thomas announced, in which the only laws that are valid are those that mirror eighteenth- and nineteenth-century laws, applies to no other constitutional right. …With respect to virtually all other rights, courts also ask whether the state has a strong enough interest to limit the right, and whether it has done so in a sufficiently narrow way. This “means-ends” scrutiny, pervasive in constitutional law, governs free speech, free exercise, and equal protection claims, among others, and expressly allows for the assessment of contemporary needs and conditions….

But it gets worse. Defenders of New York’s law cited boatloads of historical examples of laws restricting the public carrying of weapons, spanning nearly seven hundred years. They include the Statute of Northampton, first enacted in 1328, which made it a crime to carry arms in public without the king’s permission and which was copied by several American colonies. Limits on carrying weapons continued through the founding era, and before and after the enactment of the Fourteenth Amendment. It should hardly be surprising that governments have long restricted the carrying of weapons in public.

Justice Thomas, however, found ways to reject each and every historical example. As Justice Breyer pointed out in a devastating dissent, Thomas found some “too old,” others “too recent.” “Some were enacted for the wrong reasons,” others “arose in historically unique circumstances.” Thomas’s wide-ranging set of excuses for rejecting analogues only underscores the subjective character of the enterprise and belies any claim that the historical method of interpretation significantly restrains judicial discretion….

Judging, especially at the Supreme Court level, requires not just a theory for interpreting constitutional law. It requires statesmanship, humility, an open mind, and, perhaps most importantly, respect for the institution and the accumulated judgment of one’s predecessors. As the Dobbs dissent noted, Justices Kennedy, O’Connor, and Souter [all nominated by Republican presidents] understood that:

The American public … should never conclude that its constitutional protections hang by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here.

Next term the Court takes up the constitutionality of affirmative action, racial discrimination in redistricting, a sweeping challenge to the Indian Child Welfare Act, a claim that “expressive” businesses have a right to discriminate against gay couples … and an unprecedented and dangerous claim that state courts cannot police their legislatures when they gerrymander congressional districts. Whether the Court will continue its headstrong approach to all that has gone before it is likely to depend on how we as citizens respond to its initial salvos. If Americans mobilize, demonstrate, and vote on issues like abortion, gun control, and climate change, the Court will at some point have to take heed. But if we sit back and allow it to take away our rights and safety without a fight, there’s no telling how far the five [or six] justices who now exercise majority control will go.

Unquote.

It’s an excellent article, but I disagree with the author’s contention that this Court “will at some point have to take heed” of what the majority of American voters want. Short of Congress doing something like adding Supreme Court justices or limiting the Court’s ability to declare laws unconstitutional, this renegade Republican majority has absolute power. They can rule however they want and can always make up reasons for doing so.

Two Major Democracies At Risk

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Two articles in the New York Times opinion section dealt with creeping authoritarianism in the world oldest democracy and the world’s largest. First, from Thomas Edsall’s column about the oldest:

Herbert Kitschelt, a political scientist at Duke, noted in an email that the United States stands apart from most other developed nations in ways that may make this country especially vulnerable in the universe of democratic states to authoritarian appeals and democratic backsliding:

There are two unique American afflictions on which T___ could thrive and that are not shared by any other advanced Western … country: the legacy of slavery and racism and the presence of fundamentalist evangelicalism, magnifying racial and class divisions. There is no social organization in America that is as segregated as churches.

In this context, Kitschelt wrote,

a critical element of T____ist support is trying to establish in all of the United States a geographical generalization of what prevailed in the American South until the 1960s civil rights movement: a white evangelical oligarchy with repression — jail time, physical violence and death — inflicted on those who will not succumb to this oligarchy. It’s a form of clerofascism [i.e. clerical fascism]. A declining minority — defined in economic and religious terms — is fighting tooth and nail to assert its supremacy.

Underlying the racial motivations, in Kitschelt’s view, are

changes in political economy and family structure, strongly related also to a decline of religion and religiosity. Religions, for the most part, are ideological codifications of traditional paternalist family kinship structures. Postindustrial libertarianism and intellectualism oppose those paternalisms. This explains why right-wing populists around the world draw on religion as their ultimate ideological defense, even if their religious doctrines are seemingly different: T____(white Protestant evangelicalism and Catholic ultramontanism [which emphasizes supreme papal authority], Putin (Orthodoxy), Modi (Hinduism), Erdogan (Islam), Xi (Confucianism).

Unquote.

India is the world’s largest democracy, with four times the population of the U.S. The other Times article described its more established slide into religious fascism. This is by an Indian journalist, Debasish Roy Chowdhury:

Prime Minister Narendra Modi stood last month atop India’s nearly completed new Parliament building, built to mark the country’s 75 years of independence, and pulled a lever. A sprawling red curtain fell back to reveal the structure’s crowning statue. Many across India gasped.

The 21-foot-tall bronze figure — four lions seated with their backs to one another, facing outward — is of India’s revered national symbol. The beasts are normally depicted as regal and restrained, but these looked different: Their fangs bared, they seemed angry, aggressive.

Untitled

To Mr. Modi’s critics, the refashioned image atop the Parliament building— a project that was rammed through without debate or public consultation — reflects the snarling “New India” he is creating.

In his eight years in power, Mr. Modi’s Bharatiya Janata Party government has profaned Indian democracy, espousing an intolerant Hindu supremacist majoritarianism over the ideals of secularism, pluralism, religious tolerance and equal citizenship upon which the country was founded after gaining independence on Aug. 15, 1947.

Drawing comparisons to Nazi Germany, the regime uses co-opted government machinery, disinformation and intimidation by partisan mobs to silence critics while dehumanizing the large Muslim minority, fanning social division and violence. Civil liberties are systematically violated.

India, the world’s largest democracy, is where the global battle between liberalism and tyranny is being lost….

Laws and rights are applied unevenly. Muslims can now be arrested for praying in public, while Hindu pilgrims are congratulated by state officials. The state celebrates the Hindu religion, while protests are orchestrated against Muslim customs like the wearing of the hijab and the call to prayer. Hindu vigilante groups attack Muslims and their businesses.

A high-ranking B.J.P. leader called Muslim refugees from Bangladesh “termites” eating away the country’s resources. Emboldened by state support, Hindu extremists now openly threaten the genocide and rape of Muslims, while the government arrests journalists who call out acts of hate. On Aug. 15, Independence Day, the government released 11 convicts serving life sentences for gang-raping a Muslim woman and murdering 14 members of her family during the 2002 Gujarat pogrom that occurred on Modi’s watch…..

At 75, after decades of institutional abuse, India’s democracy is too frail to withstand a strongman taking a sledgehammer to its weak foundations. Mr. Modi calls the Parliament building a “temple of democracy.” But the institution’s new premises in New Delhi are instead a monument to the demi-democracy he is building — a hollowed-out facade that exists to legitimize authoritarian rule.

What the Hell Is Their Problem?

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I mean, what’s going on with these people?

Theda Skocpol, a sociologist and political scientists, explains the roots of right-wing resentment in America in this interview from The Atlantic:

Starting in 2008, a widely circulated conspiracy theory was that Barack Obama was not actually born in America…. Proof of this theory was never a requirement for subscribing to it; you could simply choose to believe that a Black liberal with a Muslim-sounding middle name was not one of us….

The country has not changed much…. Now, as then, you can take the right’s scramble for evidence of fraud with a grain of salt, she told me. The election deniers who say they are perturbed by late-night ballot dumps or dead people voting are actually concerned with something else.

“‘Stop the Steal’ is a metaphor,” Skocpol said, “for the country being taken away from the people who think they should rightfully be setting the tone.” More than a decade later, evidence remains secondary when what you’re really doing is questioning whose vote counts—and who counts as an American…..

Elaine Godfrey: Tell me what connection you see between the Tea Party movement that you studied and the T____-inspired Stop the Steal effort.

Theda Skocpol: There’s a definite line. Opinion polls tell us that people who participated in or sympathized with the Tea Party … were disproportionately angry about immigration and the loss of America as they know it. They became core supporters of T____. I’m quite certain that some organizations that were Tea Party–labeled helped organize Stop the Steal stuff.

T____ has expanded the appeal of an angry, resentful ethno-nationalist politics to younger whites. But it’s the same outlook.

Godfrey: So how do you interpret the broader Stop the Steal movement?

Skocpol: I don’t think Stop the Steal is about ballots at all. I don’t believe a lot of people really think that the votes weren’t counted correctly in 2020. They believe that urban people, metropolitan people—disproportionately young and minorities, to be sure, but frankly liberal whites—are an illegitimate brew that’s changing America in unrecognizable ways and taking it away from them. Stop the Steal is a way of saying that. Stop the Steal is a metaphor. And remember, they declared voting fraud before the election.

Godfrey: A metaphor?

Skocpol: It’s a metaphor for the country being taken away from the people who think they should rightfully be setting the tone. [Pennsylvania gubernatorial candidate] Doug Mastriano said it in so many words: It’s a Christian country. That doesn’t mean we’ll throw out everybody else, but they’ve got to accept that we’re the ones setting the tone. That’s what Hungary has in mind. Viktor Orbán has been going a little further. They’re a more muscular and violence-prone version of the same thing.

People [in Wisconsin] in 2016 who were otherwise quite normal would say, There’s something wrong with those votes from Milwaukee and Madison. I’d push back ever so gently and say, Those are big places; it takes a while to count the votes. I’d get a glassy-eyed stare at that point: No, something fishy is going on.

They feel disconnected from and dominated by people who have done something horrible to the country. And T____ gave voice to that. He’s a perfect resonant instrument for that—because he’s a bundle of narcissistic resentments. But he’s no longer necessary.

Godfrey: Elaborate on that for me.

Skocpol: He’s not necessary for an authoritarian movement to use the [Republicans] to lock in minority rule. The movement to manipulate election access and counting is so far along. I think it’s too late, and we’re vulnerable to it because of how we administer local elections.

What’s happened involves an interlocking set of things. It depends not just on candidates like T____ running for president and nationalizing popular fears and resentments, but also on state legislatures, which have been captured, and the Supreme Court. The Court is a keystone in all of this because it’s going to validate … manipulations that really are about locking in minority rule. In that sense, the turning point in American history may have happened in November 2016.

Godfrey: The turning point toward what?

Skocpol: Toward a locking-in of minority rule along ethno-nationalist lines. The objective is to disenfranchise metro people, period. I see a real chance of a long-term federal takeover by forces that are determined to maintain a fiction of a white, Christian, T____pist version of America.

That can’t work over the long run, because the fastest-growing parts of the country are demonized in that scheme of things. But a lot of things liberals do play into it: Democrats are the party of strong government, and they’re almost as fixated on the presidency as T____ists are…. The hour is late. This election this fall is critical.

Godfrey: Why so?

Skocpol: We’ve got about five pivotal states where election deniers—the culmination of the Tea Party–T____pist strand of the [Republican Party]—are close to gaining control of the levers of voting access and counting the results. If that happens, in even two of those places, it could well be enough. The way courts are operating now, they will not place limits on much of anything that happens in the states.

Godfrey: So what would you say is on the ballot in 2022?

Skocpol: The locking-in of minority authoritarian rule.

People talk about it in racial terms, and of course the racial side is very powerful. We had racial change from the 1960s on, and conservative people are angry about Black political power. But I wouldn’t underestimate the gender anger that’s channeled here: Relations between men and women have changed in ways that are very unsettling to them…..

This is directed at liberal whites, too. Tea Partiers talked about white people in college towns who voted Democratic the way the rulers of Iran would speak of Muslims that are liberal—as the near-devil.

Godfrey: What are the roots of that resentment?

Skocpol: The suspicion of cities and metro areas is a deep strand in America. In this period, it’s been deliberately stoked and exploited by people trying to limit the power of the federal government. They can build on the fears that conservatives have—about how their children leave for college and come back thinking differently. As soon as you get away from the places where upper-middle-class professionals are concentrated, what you see is decay. People see that. They’re resentful of it.

Anti-immigrant politics is very much at the core of this. Every time in the history of the U.S., when you reach the end of a period of immigration, you get a nativist reaction. When the newcomers come, they’re going to destroy the country. That’s an old theme in this country.

Godfrey: The 2016 election was surrounded by a lot of discussion about whether T____’s supporters were motivated by racism or economic anxiety. What’s your view on that?

Skocpol: That whole debate tends to be conducted with opinion polls. I’m in a minority, but I don’t find them very helpful for understanding American politics…. In American politics, everything is about the where.

If you drive into a place in Iowa or Nebraska where immigration is happening, it’s changed the shops downtown, it’s changed the language, it’s changed the churches, it’s changed the schools. And people’s jobs have changed—so it’s also about economics. In our 2011 interviews, Tea Party members were angry about immigrants. I’m not saying everybody in those communities is angry at newcomers, but it creates tensions that rabble-rousing politicians can take advantage of.

We know that T____ supporters, Stop the Steal supporters, are much more likely than other Republicans and conservatives to resent immigrants and fear them. In my 2017–2019 period of research, I visited eight pro-T____ counties. Tea Party types were just furious about immigrants. T____’s emphasis on immigration interjected the idea that the debate is about what the nature of America is.

T____ism is nativism. It’s also profoundly resentful of independent women, and it’s resentful of Black people whom it considers out of place politically. T____channeled that and fused it into one big, angry brew.

Godfrey: How organic have these movements been? At a certain point, we heard a lot about how the Tea Party movement became a Koch-funded operation, not a true grassroots movement.

Skocpol: The Tea Party was not created by the Koch brothers; it was taken advantage of by the Kochs. But the Kochs were not anti-immigrant. The Tea Partiers really were. The Kochs didn’t control the results. The Kochs didn’t select D____ T____. They didn’t even like him. Marco Rubio was their guy. The Chamber of Commerce crowd wanted a Bush. Both were easily dispatched by T____.

Republican leaders could have done something—and they still could. The real story is about Republican Party elites and their willingness to go along with what they’ve always known was over the top. That’s a mystery that’s a little hard to completely solve. A lot of the opportunists think they can ride that tiger without it devouring them, even though sometimes it does. But nobody seems to learn…..

The War Between the States Continues in November

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Today’s first post dealt with the prelude to the Civil War. This one deals with the Civil War’s unresolved division. From Mark Danner for The New York Review of Books:

Amid the blaring, pulsating hype of American culture, every election is routinely proclaimed the most important in our lifetime. Now the flood of heart-stopping news this summer—the Uvalde school massacre, the overturning of Roe v. Wade, the January 6 revelations—has brought us face to face with an exceptional problem: What if this one really is? What if this time, like the boy who cried wolf, we find ourselves screaming that the emergency is real—and no one pays attention?

The 2022 election will be the first held in the shadow of an attempted coup d’état—a nearly successful and still-unpunished crime against the state. It will be the first held after a Supreme Court decision that not only uprooted a half-century-old established right but that threatens the rescinding of other rights as well. And it will be the first in which it is clear that, from Republican legislators’ relentless efforts to change who counts the votes, the very character of American governance is on the ballot.

American voters have not confronted so grave a choice since 1860. Now as then, two dramatically different futures are on offer. By undermining the right to privacy, the Supreme Court’s Dobbs decision not only allows government to force women to carry pregnancies to term—as more than half the states will likely soon do—but foreshadows a country in which a state or the federal government can deny people contraception or indeed the right to love or marry whom they choose. By limiting the regulation of firearms, the Bruen decision ensures that increasing numbers of Americans, including children in classrooms, worshipers in churches, and marchers on the Fourth of July, will die in shootings. By calling into question how votes are counted—or whether they should matter at all—the January 6 coup and the persistent “Big Lie” behind it augur a country where the candidate fewer Americans voted for not only can become president (as he did in 2000 and 2016) but can be awarded the electoral votes of a state not as the choice of its people but as a diktat of its legislature.

This America of the future will be an ever more authoritarian place where government maintains the right to intervene in personal decisions, even the most intimate—except when it comes to firearms, in which case anyone, young or old, sane or unbalanced, can go about as heavily armed as a combat soldier. The coming election can either accelerate the country’s move toward this kind of authoritarianism or begin to slow it down. If any election cried out to be nationalized—to be fought not only on the kitchen-table issues of inflation and unemployment but on the defining principles of what the country is and what it should be—it is this November’s.

It is no accident that the last time an election was fought this way was also the last time the party holding the White House gained congressional seats in the midterms. Following the September 11 attacks George W. Bush’s Republicans made ruthless use of nationalism and, above all, fear. “Americans trust the Republicans,” Karl Rove told his colleagues, to keep “our families safe.” Though terrorists had killed thousands of Americans on their watch, the Republicans turned around and denounced Democrats as soft on terror. To vote for Democrats—even for heroic veterans like Senator Max Cleland of Georgia, who had lost three limbs in Vietnam—was to vote for Osama bin Laden. The argument was shameless, savage, deeply unfair. It was anything but subtle. And it worked.

Two decades later the United States is again at risk, not from foreign terrorists but from domestic extremists who are working to insert government power between Americans and their most private decisions and who would fundamentally alter the way they choose their leaders. Justice Clarence Thomas in his Dobbs concurrence was forthright enough to state the implications of that decision for the right to contraception, same-sex relations, and marriage equality. The January 6 committee in its well-orchestrated hearings has begun to bring home to Americans the danger posed by the Big Lie for the next presidential election. Still, despite these clear signs of a darker future, for many voters the danger remains unfocused and distant.

Under the threat of this darkness, Democrats have a duty to make crystal clear to voters what is at stake in November. In midterm elections especially, Americans must be given a persuasive reason to vote—a task that is much harder for a party that won the White House only two years before. This year voters are apprehensive about inflation and other lingering effects of the pandemic and demoralized that Democrats, with their narrow majorities, have failed to achieve much of what they promised.

But the January 6 committee, the overturning of Roe v. Wade, and the Uvalde school shooting have put stark and frightening issues prominently before the public, and if presented clearly and persistently they have a strong potential to drive voters to the polls—especially younger voters, who were so vital to the Democrats’ midterm gains in 2018, and who now, after Democrats failed to pass their climate agenda, desperately need a reason to turn out. This election must be about safeguarding the country they know and the freedoms and rights they cherish. Democrats from President Biden on down need to present these issues clearly and unapologetically:

If you don’t want a government that can force you to carry an unwanted pregnancy to term—vote!

If you don’t want a government that can deny you contraceptives—vote!!

If you don’t want a government that can tell you with whom you can make love and whom you can marry—vote!!

If you don’t want a government that will do nothing to protect your child from a troubled teenager with an assault rifle—vote!!

If you don’t want a government that can ignore the people’s voice at the polling place—vote!!

If you don’t want a government that will do nothing about rising temperatures and the danger they pose to all of us—vote!

. . . During the past months the specter of an increasingly autocratic America has raised its head. Voters who cast their ballots for Democrats must be in no doubt about what they are voting for: the freedom to love and marry whom they wish, the freedom to decide when they want to bear children and to keep those children safe from gun violence—and the certainty that they will go on having a real voice in choosing who leads them. They must be reminded that these rights and freedoms are at risk, that a very different future looms. The most important election of our lifetime is coming. The emergency is upon us. If we are truly to meet it, we must first make bold to say so.

Crime and Punishment

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Given the extreme rhetoric Republican politicians and pundits have been spewing this week, it was predictable that somebody from the former president’s cult would try to kill an FBI agent or some other government official. Fortunately, the criminal is the one who died. Does likely violence mean T____ should be left alone? Michelle Cottle of The New York Times answers that question:

It took many accidents, catastrophes, misjudgments and mistakes for D____ T____ to win the presidency in 2016. Two particularly important errors came from James Comey, then the head of the F.B.I., who was excessively worried about what T____’s supporters would think of the resolution of the investigation into Hillary Clinton’s emails.

First, in July 2016, Comey broke protocol to give a news conference in which he criticized Clinton even while announcing that she’d committed no crime. He reportedly did this because he wanted to protect the reputation of the F.B.I. from inevitable right-wing claims that the investigation had been shut down for political reasons.

Then, on Oct. 28, just days before the election, Comey broke protocol again, telling Congress that the Clinton investigation had been reopened because of emails found on the laptop of the former congressman Anthony Weiner. The Justice Department generally discourages filing charges or taking “overt investigative steps” close to an election if they might influence the result. Comey disregarded this because, once again, he dreaded a right-wing freakout once news of the reopened investigation emerged.

“The prospect of oversight hearings, led by restive Republicans investigating an F.B.I. ‘cover-up,’ made everyone uneasy,” The New Yorker reported. In Comey’s memoir, he admitted fearing that concealing the new stage of the investigation — which ended up yielding nothing — would make Clinton, who he assumed would win, seem “illegitimate.” (He didn’t, of course, feel similarly compelled to make public the investigation into T____’s ties to Russia.)

Comey’s attempts to pre-empt a conservative firestorm blew up in his face. He helped put T____ in the White House, where T____ did generational damage to the rule of law and led us to a place where prominent Republicans are calling for abolishing the F.B.I.

This should be a lesson about the futility of shaping law enforcement decisions around the sensitivities of T____’s base. Yet after the F.B.I. executed a search warrant at T____’s beachfront estate this week, some … have questioned the wisdom of subjecting the former president to the normal operation of the law because of the effect it will have on his most febrile admirers.

Andrew Yang, one of the founders of a new centrist third party, tweeted about the “millions of Americans who will see this as unjust persecution.” Damon Linker, usually one of the more sensible centrist thinkers, wrote, “Rather than healing the country’s civic wounds, the effort to punish T____ will only deepen them.”

The Atlantic’s Tim Alberta described feeling “nauseous” watching coverage of the raid. “What we must acknowledge — even those of us who believe T____ has committed crimes, in some cases brazenly so, and deserves full prosecution under the law — is that bringing him to justice could have some awful consequences,” he wrote…. The former president relishes his ability to stir up a mob; it’s part of what makes him so dangerous.

We already know, however, that the failure to bring T____ to justice — for his company’s alleged financial chicanery and his alleged sexual assault, for obstructing Robert Mueller’s special counsel investigation and turning the presidency into a squalid influence-peddling operation, for trying to steal an election and encouraging an insurrection — has been disastrous.

What has strengthened [him] has not been prosecution but impunity, an impunity that some of those who stormed the Capitol thought, erroneously, applied to them as well. [His] mystique is built on his defiance of rules that bind everyone else. He is reportedly motivated to run for president again in part because the office will protect him from prosecution. If we don’t want the presidency to license crime sprees, we should allow presidents to be indicted, not accept some dubious norm that ex-presidents shouldn’t be.

We do not know the scope of the investigation that led a judge to authorize the search of Mar-a-Lago, though it reportedly involves classified documents that T____ failed to turn over to the government even after being subpoenaed. More could be revealed soon: Attorney General Merrick Garland announced on Thursday that the Justice Department had filed to unseal the search warrant.

It should go without saying that T____ and his followers, who howled “Lock her up!” about Clinton, do not believe that it is wrong for the Justice Department to pursue a probe against a presidential contender over the improper handling of classified material. What they believe is that it is wrong to pursue a case against T____, who bonds with his acolytes through a shared sense of aggrieved victimization.

The question is how much deference the rest of us should give to this belief. No doubt, T____’s most inflamed fans might act out in horrifying ways; many are heavily armed and speak lustily about civil war. To let this dictate the workings of justice is to accept an insurrectionists’ veto. The far right is constantly threatening violence if it doesn’t get its way. Does anyone truly believe that giving in to its blackmail will make it less aggressive?

It was T____ himself who signed a law making the removal and retention of classified documents a felony punishable by up to five years in prison. Those who think that it would be too socially disruptive to apply such a statute to him should specify which laws they believe the former president is and is not obliged to obey. And those in charge of enforcing our laws should remember that the caterwauling of the T____ camp is designed to intimidate them and such intimidation helped him become president in the first place.

T____ shouldn’t be prosecuted because of politics, but he also shouldn’t be spared because of them. The only relevant question is whether he committed a crime, not what crimes his devotees might commit if he’s held to account.

Unquote.

There’s a similar situation in Ukraine. Some people say we shouldn’t provoke Putin for fear he’ll do something worse. But allowing him to do whatever he wants in Ukraine won’t make him less dangerous.