The Way Out

Steve Bannon, Trump’s Joseph Goebbels, has made clear that one of his key propaganda objectives is to “flood the zone with shit.”

And at this point, with inflation piled on COVID; with a radicalized, activist Supreme Court rewriting decades of jurisprudence in the space of a couple of weeks; with Joe Manchin shilling for the fossil fuel industry as the climate disintegrates before us; with the vivid revelations of the January 6 Committee’s investigation being met with silence from the DOJ; with Joe Biden having trouble overcoming his collegial instincts to express the outrage that the times deserve … it’s easy to feel overwhelmed.

There is, I think, a way out.

1. John Roberts is not a “moderate.”

For the last five years, Chief Justice John Roberts has led a crusade to convince us that the Supreme Court is an honorable institution. His vote sustaining Obamacare bolstered his credibility among some progressives. But a full examination of his work shows him to be a willing collaborator with the authoritarian supermajority sealed and delivered by McConnell and Trump. Roberts has had a guiding hand, or led the way, in:

• Gutting the 1965 Voting Rights Act, opening the door to the current hailstorm of Republican legislation to “fix voter integrity” by making it harder for people to vote, particularly minority voters and voters in areas with heavy concentrations of Democrats, and installing partisan officials in election management — indeed allowing legislatures to substitute their own “winners” whenever they determine that the voters got it “wrong.” Shelby v. Holder (2016);
• Joining the Citizens United decision which has opened the floodgates to limitless and anonymous “dark money” campaign spending, reducing much of politics to the constant plea for money by candidates on both sides;
• Giving state legislatures a completely free hand in gerrymandering congressional districts and state legislative districts so long as the intent was to cheat on behalf of a political party with no overt racial motives. The Rucho opinion (2019) acknowledged that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations. Roberts’ exact words:

“Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” * * * does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” (Opinion at 30).

When Alito’s abysmal draft opinion in Dobbs was leaked, many commentators noted that Roberts had not joined the majority overruling Roe, raising hope that Roberts concern for the Court’s integrity and the principle of stare decisis might somehow allow him to pick off one of the Alito votes and save Roe.

Maybe that would be Amy Coney Barrett: Many people remember Barrett’s speech at the McConnell Center the year before where she announced that appearances to the contrary, “This Court is not comprised of a bunch of partisan hacks.” Maybe, people thought, this TV-ready mother of seven is committed to fair play since she’s obviously concerned with the Court’s reputation. After all, she affirmed her commitment to Roe as “settled precedent” during her confirmation hearings. She promised Susan Collins … something.

Instead, Barrett joined the Alito opinion, flicking away settled precedent without blinking. And Roberts was firmly with the 6–3 majority endorsing a Mississippi statute that strictly limited the time frame for obtaining an abortion — a limit which had been clearly unconstitutional under Roe. While Roberts didn’t want to expressly overturn Roe, he was more than happy to eviscerate the constitutional protections Roe had guaranteed to women for 50 years without having to get his robes soiled.

2. It’s about to get much worse.

In its final day of the current session, the Supreme Court announced that it will hear and decide a case challenging the right of the North Carolina Supreme Court to use the State Constitution to determine the validity of the Republican legislature’s gerrymandered congressional districts. (Moore v. Harper)

Although the North Carolina Constitution prohibits the manner in which the legislature had assigned congressional districts, the US Supreme Court is headed toward adopting a theory, pushed for decades by right-wing zealots, that the legislature alone is empowered to make whatever rules it wants regarding congressional and presidential elections, and anything it comes up cannot be reviewed either by the state’s supreme court nor by the governor.

This is called the independent state legislature doctrine. It has already been endorsed by four of the justices on the US Supreme Court (Kavanaugh, Alito, Gorsuch, and Thomas). It will hand over to state legislatures the ability to, among other things, assign their own slate of presidential electors — as Trump has been trying to do in his efforts to overturn the 2020 election using so-called “fake electors.”

Accord­ing to former federal judge J. Michael Luttig — a distin­guished conser­vat­ive jurist who testified before the January 6 Committee — the theory is a part of the “Repub­lican blue­print to steal the 2024 elec­tion.”

3. Hope is not a strategy.

In the face of all of this, opponents of Trumpism remain inexplicably optimistic:

• I have heard serious commentators say that maybe justices Coney Barrett and Roberts won’t play along with the independent state legislature scheme because it would completely subvert democratic federal elections.
• I heard a respected law professor on NPR say that while Dobbs rescinded constitutional protections for abortion, similarly based rights to marriage choice, contraception, gay and trans rights were probably not going to be rescinded because those cases were decided much more recently than Roe.
• Many of us spent four years of Trump’s presidency singularly focused on beating him at the polls. Good job, us. But here we still are.
• Similarly, we’re fixated on the idea that bringing Trump to justice for his criminal behavior will somehow reverse the building threat that his rabid followers, theocrats, white supremacists, Putin apologists, oligarchs, gun lobbyists, complacent Republicans and ineffectual Democrats pose to our democracy.

We are at the clearest tipping point since our nation’s founding in risking a turn toward authoritarianism.

Self-indulgent progressives and exiled Republicans who voted for Biden complain that Biden hasn’t kept his promises even though he “had control of Congress.” They are literally parroting Fox News propaganda.

Talking about the 50–50 Manchin-infested “Democratic” Senate as if it was a real opportunity to govern is not just naïve, it’s cynical. It’s a way of claiming credit for doing something noble (“I held my nose, but I voted for Biden”) while at the same time demanding an immediate payoff for the “sacrifice.” Where were these people in 2016 when the Trump threat was glaringly obvious, but Hillary was, what — just too female?

4. The road forward.

• One thing Biden can get done, even with the current 50–50 Senate, is confirming progressive federal judges. Manchin’s vote as a Democrat still counts in this context, and so far, he’s been reliable in supporting Biden’s nominees. Mitch McConnell was laser focused on putting Federalist Society judges on the bench when he had the opportunity. Biden and Schumer need to be equally determined.
• We need to elect at least a 52-vote Democratic majority Senate in the next cycle to bypass the Sinema-Manchin wall. Notwithstanding the handwringing on the news about inflation and the coming Democratic “rout” in the midterms, prospects of increasing the Democratic majority are good. There are strong chances to flip Republican seats in Pennsylvania, Ohio and Wisconsin and some realistic longer shots in Florida, North Carolina, and Iowa. Make donations where you think it might help, if you can.
• For decades, the Republican Party has used “right to life” as a huge motivator in getting its base to vote. Democratic messaging about reproductive rights and Republican willingness to force 10-year-old rape victims to give birth should be unrelenting.
• Also, we need to more broadly emphasize how the Republican Party now says that when it comes to the government sticking its nose into your private business, after Dobbs, you no longer have a constitutional right to privacy. The same people who were selling the idea that Obamacare would enable the federal government to make medical decisions for you, are now comfortable letting mostly-male, highly-gerrymandered state legislatures make life-altering medical decisions for women.
• The Democratic Party needs to, in JFK’s words, “pass the torch to a new generation.” This needs to begin with new leadership in the next Congress, and must include consideration of asking Biden to retire. While he has governed with dignity and probably as effectively as anyone could have, given the circumstance left him by Trump and weak congressional numbers, his expertise is offset by stubborn nostalgia for collegiality that his Republican peers have long since abandoned. He may think that McConnell is his friend, but Caesar trusted Brutus, too.

Nancy Pelosi is a strategic genius and a great communicator. But she cannot motivate young people to think that they have a chance to lead as long as she (82), Jim Clyburn (81) and Steny Hoyer (83) are the face of Democratic leadership.

Chuck Schumer is “only” 71, but he’s hardly been inspiring. He was elected majority leader presumably because he knows the ropes of arcane Senate procedure, but we need someone who knows all that stuff and can stick an outraged finger in Mitch McConnell’s eye.

• The Supreme Court needs to be neutralized. We need to be explicit and unapologetic about how we’ll do it. Adding seats to the Court is one possibility, but it is by no means the only one. The Supreme Court’s ability to hear cases is completely dependent on Congress’s grant of jurisdiction. Congress can take away the Court’s right to hear a specific case or a class of cases. It should do so immediately with the North Carolina “independent state legislature” case (Moore v. Harper).
• Democrats need to acknowledge how badly we’ve been outplayed. Regrettably, we’ve clung too long to the idea of “going high when they go low,” and we’re getting eaten alive. For the time being, until the Republican party or its replacement is something other than a glide path to theocratic authoritarianism, we need to use the rules, just as Republicans always do, to assert (or regain) power, even if it means breaking with norms. The Constitution gives Congress the power to immediately reform the Courts. We need to use that power even if it will piss some people off. We need to be willing to engage in “good trouble.”
• The filibuster is not part of the Constitution, and we need to get rid of it. We should pass the stalled voting rights acts to get rid of partisan gerrymandering and to restore protections for all voters. We should codify Roe and enact legislation making explicit the Fourth and Fourteenth Amendments implied right to be free from government intrusion into one’s personal privacy. We should pass an assault weapons ban and limit the purchase of firearms to people over 21.

This is anything but a call for “business as usual.” It is not just a tool for the further enrichment of the DNC with a smug “Vote Blue No Matter Who” complacency.

The Republican Party has gone fully insane, but the Democrats need a thorough house-cleaning, too. Washing your hands of the process because you didn’t get what you wanted after one or two election cycles is, frankly, pathetic. It’s like Martin Luther King throwing in the towel after the first few marches and declaring the fight over because change did not come immediately.

We don’t get to have perfection. But a “more perfect Union” is our birthright.