Whereof One Can Speak 🇺🇦 🇺🇦 🇺🇦

Nothing special, one post at a time since 2012

Yeah, There’s a Name for It

We’re having a primary election today. The people I planned to vote for had no opposition, but I walked over and voted anyway. Voting is a ritual of democracy! (Plus our local election workers used to provide cookies.)

It was worth the trip. They have new, electronic, paper ballot machines. You put in a piece of paper, vote on the touchscreen, and then you look through a little window to see your votes printed on the paper. If it all looks ok, you press “cast your ballot” and the paper goes into a container. So there’s a paper trail if there’s a recount. Very cool. Every voter in the US should be able to use a machine like that. While voting still matters.

From Greg Sargent of The Washington Post:

“1776 motherfuckers.”

That’s what an associate texted to Enrique Tarrio, then the leader of the Proud Boys, just after members of the group stormed the Capitol on Jan. 6, 2021. In a new indictment that prosecutors filed against them, variations on that idea abound: Members refer to the insurrection as a glorious revival of 1776 again and again, with almost comic predictability.

… The way 1776 comes up in the indictment — combined with some surprising new details it reveals — should prompt a serious look at how far-right extremist groups genuinely think about the long struggle that they envision themselves waging.

In short, groups such as these generally are driven by a dangerous vision of popular sovereignty. It essentially holds that the will of the truly authentic “people,” a flexible category they get to define, is being suppressed, requiring periodic “resets” of the system, including via violent, extralegal means.

Such groups aren’t going away anytime soon. We should understand what drives them.

The new indictment that a grand jury returned on Monday against Tarrio and four other Proud Boys is for “seditious conspiracy.” This requires prosecutors to prove that at least two people conspired to use force to overthrow the U.S. government or subvert the execution of U.S. law.

To build this case, prosecutors have sought to present extensive evidence that the Proud Boys fully intended to use force to subvert governmental authority and relevant laws concerning the transfer of presidential power. This included arming themselves with paramilitary gear and discussing violent disruptions online in advance…. The indictment alleges that they attacked police officers, breached police lines with violence, and helped coordinate the storming of the Capitol in real time.

What’s more, in the indictment prosecutors disclose highly revealing text exchanges between Tarrio — who was not present that day — and another member later on Jan. 6. The exchanges appear to refer back to a document Tarrio possessed called “1776 returns,” which reportedly contains a detailed scheme to attack government buildings.

Those text exchanges compare Jan. 6 to both 1776 and the attack on “the Winter Palace,” which helped lead to the Russian Revolution. This seeming reference back to that document perhaps suggests they viewed Jan. 6 as the successful execution of a premeditated plan….

In this context, while all the 1776-oriented talk might seem like posturing, it points to something real and enduring on the far right.

It isn’t easy to pin down the Proud Boys, who tend to define themselves as defenders of Western civilization. Tarrio’s views appear pretty convoluted. In a 2021 interview, he admitted that the 2020 election had not been stolen from former president Donald Trump,… yet he openly celebrated the “fear” that members of Congress felt of “the people,” and helped mobilize Proud Boys to mass around the Capitol that day.

So how to make sense of that, as well as the broader tangle of ideologies on the far right?

helpful framework comes from Joseph Lowndes, a scholar of the right wing at the University of Oregon. As Lowndes notes, a longtime strain in American political culture treats procedural democracy as itself deeply suspect, as subverting a more authentic subterranean popular will.

For such ideologues, what constitutes “the people” is itself redefined by spasmodic revolutionary acts, including violence. The people’s sovereignty, and with it the defining lines of the republic, are also effectively redrawn, or even rebirthed, by such outbursts of energy and militant action.

In this vision, Lowndes told me, the “people” and the “essence of the republic” are “made new again through acts of violent cleansing.” He noted that in this imagining, the “people” are something of a “fiction,” one that is essentially created out of the violent “act.”

“This regeneration through violence is going to be with us for a long time,” Lowndes said, “because it is fundamental to the right-wing political imagination.”

Lurking behind all the 1776 cosplay, then, is a tangle of very real radical and extreme ideologies…. They aren’t going away.

Unquote.

Journalist John Ganz sums up the current situation in response to a New York Times article by a “National Review fellow”, Nate Hochman:

Since he’s fond of Marxist categories, I’d like to introduce Hochman to another one: totality. This refers to the notion that we have to analyze a social and political situation in its entirety, and that failing to do so will give us a false or incomplete picture. While he is more frank than most, Hochman doesn’t want to look at the Right in its totality. While he seems comfortable with the portions of the right that, despite being demagogic and repressive, remain within the bounds of legal and civic behavior, like the anti-trans and anti-Critical Race Theory campaigns, he doesn’t really want to talk about January 6th, or the stolen election myth, great replacement, or the cultish worship of T____, or the Proud Boys, who now have a significant presence in [the] Miami-Dade Republican party….

But these things are as much, if not more, emblematic of the modern Republican party as young Mr. Hochman in his blazer over there at The National Review….

So now let’s recapitulate the totality of the political situation, with the help of Mr. Hochman’s fine essay. He wants to say this new right is essentially a secular [non-religious] party of the aggrieved, [a coalition that feels] the national substance has been undermined by a group of cosmopolitan elites, who have infiltrated all the institutions of power. That believes immigrants threaten to replace the traditional ethnic make up of the country. That borrows conceptions and tactics from the socialist tradition but retools them for counter-revolutionary ends. That is animated by myths of national decline and renewal. That instrumentalizes racial anxieties. That brings together dissatisfied and alienated members of the intelligentsia with the conservative families of the old bourgeoisie and futurist magnates of industry. That looks to a providential figure like T___ for leadership. That has street fighting and militia cadres. That has even attempted an illegal putsch to give their leader absolute power.

If only there was historical precedent and even a neat little word for all that.

Unquote.

Well, here’s a hint. The precedent is Nazi Germany and the neat little word is “FASCISM”.

The Terrorists Among Us

In the aftermath of the massacre in a black neighborhood in Buffalo, New York, on Saturday, it’s worth noting a study produced by the Anti-Defamation League. They found that in the ten years between 2012 and 2021, 75% of the murders in the US that were connected to political extremism were committed by the radical right (otherwise known as upstanding members of the Grand Old Party). From David Leonhardt of the NY Times:

Over the past decade, the Anti-Defamation League has counted about 450 U.S. murders committed by political extremists.

Of these 450 killings, right-wing extremists committed about 75 percent. Islamic extremists were responsible for about 20 percent, and left-wing extremists were responsible for 4 percent.

More than half of the murders were specifically tied to white supremacists:

As this data shows, the American political right has a violence problem that has no equivalent on the left. And the 10 victims in Buffalo this past weekend are now part of this toll. “Right-wing extremist violence is our biggest threat,” Jonathan Greenblatt, the head of the ADL, has written. “The numbers don’t lie.”

The pattern extends to violence less severe than murder, like the Jan. 6 attack on Congress. It also extends to the language from some Republican politicians — including [the former president] — and conservative media figures that treats violence as a legitimate form of political expression. A much larger number of Republican officials do not use this language but also do not denounce it or punish politicians who do use it; Kevin McCarthy, the top House Republican, is a leading example.

. . . The precise explanation for any one attack can be murky, involving a mixture of ideology, mental illness, gun access and more. In the immediate aftermath of an attack, people are sometimes too quick to claim a direct cause and effect. But it is also incorrect to pretend that right-wing violence and left-wing violence are equivalent problems.

If you talk to members of Congress and their aides these days — especially off the record — you will often hear them mention their fears of violence being committed against them.

Some Republican members of Congress have said that they were reluctant to vote for [the ex-president’s] impeachment or conviction partly because of the threats against other members who had already denounced him. House Republicans who voted for President Biden’s infrastructure bill also received threats. Democrats say their offices receive a spike in phone calls and online messages threatening violence after they are criticized on conservative social media or cable television shows.

People who oversee elections report similar problems. “One in six elec­tion offi­cials have exper­i­enced threats because of their job,” the Brennan Center, a research group, reported this year. “Ranging from death threats that name offi­cials’ young chil­dren to racist and gendered harass­ment, these attacks have forced elec­tion offi­cials across the coun­try to take steps like hiring personal secur­ity, flee­ing their homes, and putting their chil­dren into coun­sel­ing.”

There is often overlap between these violent threats and white supremacist beliefs. White supremacy tends to treat people of color as un-American or even less than fully human, views that can make violence seem justifiable. The suspect in the Buffalo massacre evidently posted an online manifesto that discussed replacement theory, a racial conspiracy theory that Tucker Carlson promotes on his Fox News show.

“History has taught us that what begins with words ends in far worse,” Representative Liz Cheney, one of the few Republicans who have repeatedly and consistently denounced violence and talk of violence from the right, wrote on Twitter. “The House GOP leadership has enabled white nationalism, white supremacy, and antisemitism,” Cheney wrote, and called on Republican leaders to “renounce and reject these views and those who hold them.”

A few other Republicans, like Senator Mitt Romney, have taken a similar stance. But many other prominent Republicans have taken a more neutral stance or even embraced talk of violence.

Some have spoken openly about violence as a legitimate political tool — and not just [the party’s leader], who has done so frequently.

At the rally that preceded the Jan. 6 attack, Representative Mo Brooks suggested the crowd should “start taking down names and kicking ass.” Before she was elected to Congress, Marjorie Taylor Greene supported the idea of executing Barack Obama, Nancy Pelosi and other top Democrats. Representative Paul Gosar once posted an animated video altered to depict himself killing Alexandria Ocasio-Cortez and swinging swords at Biden.

Rick Perry, a former Texas governor, once called the Federal Reserve “treasonous” and talked about treating its chairman “pretty ugly.” During Greg Gianforte’s campaign for Montana’s House seat, he went so far as to assault a reporter who asked him a question he didn’t like; Gianforte won and has since become Montana’s governor.

These Republicans have received no meaningful sanction from their party. McCarthy, the Republican leader in the House, has been especially solicitous of Brooks and other members who use violent imagery.

This Republican comfort with violence is new. Republican leaders from past decades, like Ronald Reagan, Bob Dole, Howard Baker and the Bushes, did not evoke violence.

“In a stable democracy,” Steven Levitsky, a Harvard political scientist, told me, “politicians unambiguously reject violence and unambiguously expel from their ranks antidemocratic forces.”

Russia Ain’t the Soviet Union Anymore

Two European academics who have studied Russia’s culture and politics explain why the war in Ukraine is much more than a response to NATO. They also explain why segments from the most extreme Fox News programs are replayed on Russian TV:

In recent weeks, many analysts — especially those trying to find a logical justification for the Russian war in Ukraine — have argued that the Kremlin was reacting to a perceived threat from NATO encroachment and the Western alliance’s push into Russia’s sphere of influence.

While that may be so, such explanations miss an important point. . . . 

Gay parades and cancel culture

In his sermon approximately two weeks into the war, on March 6, the patriarch of the Russian Orthodox Church justified the invasion of Ukraine as necessary to defend Orthodox Christians against Western values and gay pride parades. On March 24, during a meeting with young artists, Russian President Vladimir Putin complained about cancel culture, arguing that much the way J.K. Rowling was criticized for her opposition to transgender rights, the West was now “trying to cancel a whole 1,000-year culture, our people … Russian writers and books are now canceled.”

Russia presents itself as being at the forefront of the global culture wars, leading the resistance to liberal values. Russian anti-Westernism has religious implications: According to its own narrative, Russia is guarding true Christian faith, as embodied in the Eastern Orthodox church, from Western attempts to distort it, whether through Marxism in the 20th century or liberalism in the 21st.

Ukraine plays an important role in this story. It is depicted as part of the “Russian world,” the cradle of Russian civilization, which for many centuries was centered not around Moscow but around Kyiv, capital of today’s Ukraine. Ukraine’s choice to orient itself toward the West and reconcile a Slavic Orthodox identity with liberal democratic values is thus dangerous to this Russian vision of itself.

Global Christian Right

The arguments about gender freedoms and cancel culture that we hear today from Patriarch Kirill and Putin are nothing genuinely Russian. They derive from a global Christian right ideology, which Russian conservatives learned about in the 1990s.

Right after the end of the Cold War, Christian right activists, especially from the United States, flocked into Russia; among them were Focus on the FamilyCoMission and the World Congress of Families. From the 1990s onward, Russian conservatives have argued that the frustrations of their society falling apart result from painful liberal socioeconomic reforms. Their argument combines elements of a late-Soviet conservative social ethos, Russian Orthodox traditionalism and huge transnational influences.

Today’s Russian discourse on traditional values is a hybrid of Christian right ideas from the global culture wars and nostalgia about Russia’s great Soviet and even greater imperial and Orthodox Christian past.

The whimsical West

This type of Russian cultural conservatism was marginal until around 2010, when it started to migrate to the center of Russian political life — decisively so during Putin’s third term as president. For Putin, the traditional values discourse was a good pretext for political repression — exemplified in the treatment of the Pussy Riot women — and a shield against rising opposition, which demanded more freedoms.

Traditional values and the defense of Christianity were a suitable foundation for the new Russian foreign policy mission: becoming the leader of those countries and actors that were not, were no longer or had never wanted to be “liberal.”

In the process of “learning” the global culture wars, Russian conservatives not only defined their national identity in relation to a global Christian conservatism, but also acquired a precise vision of the West as spiritually hollow and failing. Christian conservatives flocking to Russia conveyed an image of the West that was torn, weak and doomed, because it no longer had children, no longer had values, and did not even distinguish between men and women. As a result, many Christian conservatives from the United States and Europe  looked to Russia with hope.

Christian conservatives’ image of a failing and doomed West began to dominate views of Russian conservative elites during the late 2000s. But Russian elites saw their Western conservative partners as part of that failing West: they too were weak and pitiful heralds of a West in decline.

Russian triumphalism

This account of the West helped give birth to a new Russian triumphalism. Russian media filled with TV shows and “documentaries” on “Gayropa” and “Sodom.” These shows conjured up a caricature of weak “gayish” Western males and women who lost their femininity by competing with men in spheres where they could achieve nothing serious.

Russian media frequently stressed the oddity that many Western democracies nominated women as defense ministers, as if that was the ultimate proof that the West has lost its ability to defend itself. In this collective image of a weak West, Russia depicted itself (to the inside and outside) as the country of strength, the bulwark of traditional families: with strong men, fertile women and children properly guarded against subversive homosexual propaganda.

Russian triumphalism

This image is without any empirical foundation, but that was not important. It resulted in an internal perception of Russia as world messiah and a force preventing the world from sliding into the chaos of evil, with a special mission of saving the world from liberal depravities. The Patriarch’s March 6 sermon expressed precisely that worldview.

Fascinated by this flattering vision of Russia, elites, it seems, overestimated Russia’s strength and underestimated Ukraine’s. The Kremlin also appears to have underestimated the strength and unity of the collective West, which appears not as corrupted and not as weak as Russia imagined. Pointedly, J. K. Rowling, whom Putin mentioned as a victim of Western cancel culture, refused his characterization and accused Putin of killing civilians instead.

Unquote.

Everybody should keep in mind that 21st century Russia isn’t the 20th century Soviet Union. There are no communists in power now. Putin is yet another neo-fascist authoritarian, the kind that rules over HungaryBrazilIndiaTurkey, the Philippines and elsewhere. That’s why our former president and other Republicans admire Putin and those like him. The days when being an anti-Communist meant being anti-Russia are long gone.

Down, Down, Down We Go, Politically Speaking

Considering that this is 2022, not 1952, it was quite a surprise the first time I read that a Republican politician called some innocuous Democrat a “communist”. But crazy talk is no longer out of the ordinary for one of our major political parties. Ed Kilgore of New York Magazine was surprised too:

The day after the 2020 vice-presidential debate between Mike Pence and Kamala Harris, then-President D____ T____ did something that is hard to do: He actually shocked me with intemperate language, in this case referring to Harris as a “monster” and a “communist.” The “monster” business didn’t surprise me, actually, given T____’s long history of personal insults to women. But “communist?” Seriously? I hadn’t heard a Republican call a Democrat a commie since the high tide of McCarthyism — and even back then, the rare slur was associated with specific (if lunatic) allegations of subservience to an international Marxist-Leninist conspiracy operating out of Moscow. Sure, for a generation, Republicans have been imprecisely calling Democrats “socialists,” though no more than a handful of Donkey Party members answer to that appellation, . . . but “communist” is actually pretty precise . . . 

It’s not just T____ throwing the term around. One of his favorite Republican acolytes, Congresswoman Marjorie Taylor Greene of Georgia, calls Democrats — all of them, not just some of them — communists all the time (most recently in her speech to a white-nationalist group, in which she referred to “Democrats, who are the Communist Party of the United States of America”). When Republicans lost two Senate seats and control of the upper chamber in Greene’s home state in January 2021, South Dakota governor Kristi Noem called the winning Democratic candidates communists. And another Republican member of Congress, Senator Tommy Tuberville of Alabama, betrayed a lack of understanding of communism just last month in explaining that the Russians were invading Ukraine because, as a communist, Vladimir Putin “couldn’t feed his people” and needed Ukraine’s farmland [note: Russia’s authoritarian leader, a fascist kleptocrat, doesn’t even belong to the Communist Party, although some Russians still do].

But amazingly ridiculous accusations are now a sign of the times in Republican circles (even though journalists still refer to Republicans as “conservatives”). From Thomas Zimmer and The Guardian:

Ever since entering Congress, Marjorie Taylor Greene has been making headlines . . . The latest escalation came last week, when she smeared her Republican colleagues in the Senate, Lisa Murkowski, Susan Collins and Mitt Romney, as “pro-pedophile” after they voted to confirm Ketanji Brown Jackson to the US supreme court; Democrats, she added, “are the party of pedophiles.”

. . . The fact that Greene’s antics are so clearly designed to keep herself in the spotlight has prompted calls for the media and commentators to stop paying attention to her rather than be complicit in the amplification of far-right propaganda. And if what’s on display here were just the extremist behavior of a fringe figure, it would indeed be best to simply ignore her. This, however, isn’t just Greene’s extremism – it is increasingly that of the Republican party itself. Greene and the many provocateurs like her are not just rightwing trolls, but elected officials in good standing with their party. Ignoring them won’t work, nor will making fun of them: These people are in positions of influence, fully intent on using their power.

In any (small-d) democratic party, Greene’s extremism should be disqualifying. In today’s Republican party, she’s not being expelled, she’s being elevated. Greene is undoubtedly one of the rightwing stars in the country, and that’s not just a media phenomenon. Republican candidates crave her endorsement. . . . 

Greene’s rise is indicative of a more openly militant form of white Christian nationalism inserting itself firmly at the center of Republican politics. “America First” candidates like Greene are representing the Republican party all over the country. In Arizona, for instance, state senator Wendy Rogers proudly declared herself to “stand with Jesus, Robert E Lee, and the Cleveland Indians” back in December – all of them supposedly “canceled” by “satanic communists”. .. .  In Georgia, gubernatorial candidate Kandiss Taylor runs on a platform of “Jesus, Guns, and Babies” and openly advocates for the establishment of a Christian theocracy.

The Republican party doesn’t just tolerate such extremists in an attempt to appease the fringe – this isn’t simply a matter of acquiescence out of convenience or cowardice. What we really need to grapple with is the fact that this sort of radicalism is widely seen as justified on the right. The exact language someone like Greene uses might be slightly crasser than what some conservatives are comfortable with, and some Republicans might disagree with specific aspects of the public image she projects. But it’s obviously not enough for them to break with her, or with any of the Christian nationalist extremists in their ranks.

If anything, most of what Greene is saying actually aligns with the general thrust of conservative politics. Republicans are currently all in on smearing anyone who disagrees with their assault on LGBTQ rights [or supports sex education in schools] as “groomers” and declaring any progressive social position adjacent to pedophilia. And it’s really hard to tell the difference between Greene’s propaganda and what much of the reactionary intellectual sphere has been producing. Rod Dreher, for instance, one of the Religious Right’s best-known exponents, has called the Democrats the “party of groomers” and “the party of child mutilators and kidnappers” . . . 

That’s precisely the key to understanding why so many Republicans are willing to embrace political extremism. Greene’s central message is fully in line with what has become dogma on the right: that Democrats are a radical, “Un-American” threat, and have to be stopped by whatever means. Everyone suspected of holding liberal or progressive positions is a “fellow traveler with the radical left,” as senator Ted Cruz put it; as part of the “militant left,” Democrats need to be treated as the “the enemy within,” according to senator Rick Scott; and Florida governor Ron DeSantis declared that Stacey Abrams winning the Georgia gubernatorial election would be akin to a foreign adversary taking over and lead to a “cold war” between the two neighboring states.

. . . Greene’s pedophilia accusations . . .  adhere to the higher truth of conservative politics: that Democrats are a fundamental threat to the country, to its moral foundations, its very survival. “How much more can America take before our civilization begins to collapse?” Greene asked last week. There aren’t many conservatives left who disagree with her assessment. That’s how they are giving themselves permission to embrace whatever radical measures are deemed necessary to defeat this “Un-American” enemy.

Once you have convinced yourself you are fighting a noble war against a bunch of pedophiles hellbent on destroying the nation, there are no more lines you’re not justified to cross. Greene and her fellow extremists are perceived to be useful shock troops in an existential struggle for the survival of “real” America. The right isn’t getting distracted by debates over whether Greene’s militant extremism or Mitch McConnell’s extreme cynicism are the right approach to preventing multiracial pluralism. They are united in the quest to entrench white reactionary rule.

I fear that . . .  we might have become a bit numb to how extreme and dangerous these developments are. Let’s not be lulled into a false sense of security by the clownishness, the ridiculousness of it all. Some of history’s most successful authoritarians were considered goons and buffoons by their contemporaries – until they became goons and buffoons in power.

What we are witnessing is one party rapidly abandoning and actively assaulting the foundations of democratic political culture. Every “Western” society has always harbored some far-right extremists like Greene. But the fact that the Republican party embraces and elevates people like her constitutes an acute danger to democracy.

Unquote.

Yet, if you believe the polls, Americans who are willing and able to vote are going to put these right-wing bastards in charge of Congress next year. Two years later, if given the chance, they’d put the treasonous conman who can only handle short sentences back in the White House. This is America in 2022, not 1952.

Radical Judges Running Wild

It’s only getting worse at the Supreme Court now that six of the nine justices are Republicans. A University of Texas law professor explains:

Last week the Supreme Court, by a 5-to-4 vote, put back into effect a T___ administration regulation that [makes it harder for] states to [protect rivers and streams from being polluted]. The unsigned, unexplained order in Louisiana v. American Rivers came as part of a highly technical dispute over the scope of the Clean Water Act — and leaves for another day whether the regulation is a valid interpretation of that Nixon-era statute.

But the temporary decision cannot be ignored, especially because of the brief but blistering dissenting opinion written by Justice Elena Kagan. It’s not the first time that liberal justices have called out most of the court’s conservative [no, radical] justices for their increasingly frequent use of the so-called shadow docket — unsigned, unexplained orders like the one last week. But it was significant for being the first time that [Republican] Chief Justice John Roberts joined her (and Justices Stephen Breyer and Sonia Sotomayor) in doing so.

With the striking public stance, the chief justice illustrated how concerns about the procedural shortcuts the other [right-wing] justices are taking . . . . He also made clear what many have long suspected: The Roberts court is over.

The term “shadow docket” was introduced by the University of Chicago law professor Will Baude in 2015 to describe the more obscure part of the Supreme Court’s work — the thousands of unsigned and usually unexplained orders that the justices issue each year to manage their docket. Those orders are in contrast to the merits docket, the 60 to 70 cases each year that go through rounds of briefing and oral argument before being resolved in long, signed opinions for the court.

Owing to its inscrutability, the shadow docket has historically received much less public attention or scrutiny. Most shadow docket orders are anodyne — matters as routine as refusing to take up an appeal or giving a party more time to file a brief.

But far more than ever before, the court is using procedural orders on applications for emergency relief while appeals work their way through the courts to resolve disputes affecting the lives of millions of Americans — whether in blocking a rule from the Occupational Safety and Health Administration on a vaccination mandate for large employers, refusing to block Texas’ ban on most abortions after six weeks or putting back into effect congressional district maps that two Alabama lower courts struck down as violating the Voting Rights Act.

Time and again, the [Republican] justices are ordering lower courts to treat these decisions as precedents — even when, as in last week’s ruling, the order includes no analysis to apply to other cases, which often makes the precedent difficult for lower courts to apply.

Unsurprisingly, these rulings have provoked increasingly strident dissents from the court’s liberal justices. Last September, when the justices refused, by a 5-to-4 vote, to halt the patently unconstitutional Texas abortion law, Justice Kagan criticized the majority not just for the substance of its ruling but also for what that ruling said about the shadow docket. She wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

Last week, by freezing a district court injunction despite a lack of evidence that it was harming the complaining states, the majority once again defied the requirements for the very emergency relief they granted. Justice Kagan wrote that that renders the court’s “emergency docket not for emergencies at all” but rather “only another place for merits determinations — except made without full briefing and argument.” In other words, the principal justification for shadow docket orders — the need to intervene early in litigation to prevent a party from suffering irreversible harm while the appeal unfolded — was nowhere to be found.

Chief Justice Roberts voted with Justices Breyer, Sotomayor and Kagan in dissenting from six previous shadow docket rulings. But the Clean Water Act dispute was the first time he joined in the procedural criticism that the other conservatives were not just using the shadow docket but abusing it. . . .  By publicly endorsing the charge that the conservative justices are short-circuiting ordinary procedures to reach their desired results without sufficient explanation, Chief Justice Roberts provided a powerful counter to defenders of the court’s behavior, [such as hard-right] Justice Samuel Alito. . . . 

What is especially telling about Chief Justice Roberts’s dissents in these shadow docket cases is that, unlike Justices Breyer, Sotomayor and Kagan, he’s often been sympathetic to the results. In February’s Alabama redistricting ruling, for instance, Chief Justice Roberts agreed that the court should reconsider the interpretation of the Voting Rights Act under which Alabama’s maps had been struck down; he just believed that any change in that interpretation had to come through the merits docket, not the shadow docket.

At least on the shadow docket, though, that’s no longer up to him. Instead, the court’s destiny increasingly appears to be controlled by Justices Brett Kavanaugh and Amy Coney Barrett. She implored an audience at the Ronald Reagan Presidential Library just last week to “read the opinion” before jumping to any conclusions about whether the justices are acting more like politicians than judges. Two days later, she joined the majority’s unsigned, unexplained order in the Clean Water Act case, in which there was no opinion to read. Justice Kavanaugh, too, [is] troubled by criticism of the court’s behavior, [not] the behavior itself . . . . 

The court’s credibility [is wearing out]. The justices have long insisted — as Justices Sandra Day O’Connor, Anthony Kennedy and David Souter [all nominated by Republican presidents] put it in 1992 — that “the court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation.” The proliferation of principle-free decisions affecting more and more Americans — and with a clear, troubling tendency of favoring Republicans over Democrats — calls that legitimacy into increasingly serious question.

It’s understandable, then, why Chief Justice Roberts would finally speak out. . . .  If even his objections can’t persuade the other [Republicans] to stop abusing the shadow docket, then that may signal the willingness of the court’s [radical right] majority to go even further in the future and to use the shadow docket to resolve even more significant and contentious constitutional questions.

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