In "The March of Folly" Barbara Tuchman defines folly as the tendency of governments to act against their own self-interest. To qualify as folly it must have been perceived as folly in its own time (see the comments to this post), have a feasible alternative course of action (given the ferociously unstoppable organization of the Republican Party and the utter inability of the Democratic Party to focus on anything, I'm not sure an effective one exists today), and the policy must have been that of a group and not an individual leader (the Republicans have both and I would say two of the latter, Trump and McConnell). The US has been called down and out more than once in our past and maybe we'll rally this time, too, but I am not hopeful.
And then just to put a cherry on my we're-all-going-to-hell-together-here cake, I recommend a series of books written by an SF writer named F.M. Busby (his Bran Tregare series), who imagined the existence of a future US taken over entirely by corporate interests. It ain't pretty, and it's looking more than a little prescient now.
Excellent piece - though I didn't have the heart to read it till today. As these latest decisions show. Trump didn't have to overturn the election to stay in power. We are still in the Trump era, and on certain questions we may be just at the beginning of what will be his legacy.
Terriffic analysis, Jim. Right up there with Greenhouse and Liptak today. Could there have been a worse time, given the chaotically polarized state of the country, for the SP to tackle Roe and guns.? Your remedies are right on but what chance, given the tyranny of the minority? Fate is indeed in the saddle, riding man. I am 85 and never thought I would end up worried about the future of our country . . . and my eight grandchildren.
Thanks. I think a lot depends on whether the Democrats are willing and able to frame this *radical* assault on the norms of American democracy, from Trump himself and from the three justices he got onto the court, as the emergency it is.
I mean, 4 of the justices who made this ruling were confirmed with less than 60 votes. So, why is legislation held to a higher standard than justices who are more than willing to ignore and overturn it?
When I was growing up in the 70’s and early 80’s the phrase “minority rule” was often accompanied by “armed resistance to”. Couple that with the weakening of gun control by the Supreme Court and, well, I wonder if anyone in the GOP has any awareness of recent history.
Jun 25, 2022·edited Jun 25, 2022Liked by James Fallows
for Deanna from Diana :) "With help from SCOTUS and the GOP, American democracy is going to hell and we can't seem to figure out how to stop it." The answer is to have a Voting Holiday, turn out the Vote. With the Vote, the people can make things change.
Most Americans now do not participate because they never had civic classes, never went with their high school to see the Town Selectmen and women doing their work at Town Hall. They don't know how the system works
Fortunately, many local Democratic offices and groups like Indivisible offer positive change. https://indivisible.org
The students in the 1960's and 1970's caused change with large, nonviolent protests, then with work on social change like anti-poverty programs. We stopped the Vietnam War and made the corrupt President resign. A lot of people went to jail when Congress had to act because student protests across the country shut down the economy and worried the parents, who voted.
"Never doubt that a small group of thoughtful, committed individuals can change the world. In fact, it's the only thing that ever has." Margaret Mead
"Gonna say it again: A country of bored middle-class narcissists who yearn for some sort of dramatic crusade to give meaning to their empty lives." Tom NIchols, on concealed gun carry topic
“All that was needed was an unending series of victories over your own memory.” George Orwell 1984
"...this is the lesson: never give in, never give in, never, never, never, never-in nothing, great or small, large or petty — never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy. " Prime Minister Winston Churchill's address to Harrow School on October 29, 1941
"The era of procrastination, of half-measures, of soothing and baffling expedients, of delays is coming to its close. In its place we are entering a period of consequences."
-- Winston Churchill, Nov. 12, 1936
The Dalai Lama once said
“if you think you’re too small to make a difference, try sleeping with a mosquito.”
To put your "imbalance of the Senate" and sudden relevance of the Electoral College in another light.
California has a population of 39.8 million and two Democratic senators. The 15 smallest states with two Republican Senators (Wyoming, Alaska, North Dakota, South Dakota, Idaho, Nebraska, Kansas, Mississippi, Arkansas, Utah, Iowa, Oklahoma, Kentucky, Louisiana and Alabama) have a population of 40.3 million.
And we here in my current home of DC are in an even less representative situation than that of my "real" home of Calif: More people than two states (WY and VT), but together they have four senators and two representatives, and zero for DC. DC's population is also closing in on North Dakota's.
I like your suggestions and i want to add one more - democratic congressional leaders bear some culpability here. You often make the point that "in any other field, Donald Trump would be disqualified." I don't know that Pelosi and Schumer could've done more - but in any other field, such a resounding defeat would lead to the Head Coach being fired, especially if he's not a rookie.
The fact that in the last decade they've been so thoroughly outmaneuvered on the biggest questions of the era that have considerable majority support - voting rights, individual autonomy, anti racism, gun control, climate change - and have seen all of those measures either stuck in the status quo or reversed, can only be described as failure.
Yes to all the points you've made - i don't know how they could've gotten around the way the opposition has hacked the system to rule by minority fiat - but nevertheless, they have failed. It may just be symbolic, but I think a changing of the guard is needed. Being preached to "don't get mad, get to the polls" is getting disheartening.
Thanks. I am agnostic on who should be leading the Democratic party — and Pelosi, in specific, has time and again shown that she knows things about the process of legislation. (For instance: the whole January 6 committee, and McCarthy's self-destructive pouting decision to pull "normal" GOP representation from it.) But, yes, generational change and youthful vigor is important. I'm in favor of it as it comes — and meanwhile concentrating on the main challenge, posed by the (also geriatric) Mitch McConnell and his bloc.
My world needs you, including whatever answers you have to offer. Really, it comforts me to know some among us are willing to contemplate what is happening, -- thus absolutely removing inevitability, according to Marshall McLuhan. I wonder whether I would still love McLuhan's THE MEDIUM IS THE MESSAGE; maybe. I do know I still love the promise of an alternative to succumbing to inevitability.
"Local Indivisible groups build and wield power in ways that individuals can’t. To create change, you need the collective constituent power that comes with working together, as Indivisibles.
We’re a grassroots movement of thousands of local Indivisible groups with a mission to elect progressive leaders, rebuild our democracy, and defeat the Trump agenda."
(it helps a lot to listen to 1960's protest songs and rock songs of that era about peace :)
Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed.
Excellent analysis Jim. This is a radical Court, not a conservative one. It is akin to Taney's Court, which sought to institutionalize the expansion of slavery for the sake of the Southern slaveocracy, which had lost its majority in Congress and was using the Court just as it is being used now (at the behest of the Greater South). As bad as the reversal of Roe is, at least it is now up to state legislatures, which can be influenced by the electorate. I am even more appalled by the gun ruling, which takes away from states the ability to regulate weapons. So much for my own confidence that at least here in Massachusetts we could maintain control over such issues. Calhoun's Nullification doctrine is beginning to look like an option....
But honestly, I think we are coming to a time where some states will refuse to obey the judgements of the Court and Federal government. Massachusetts. California and New England come to mind first.
Regarding the idea of states ignoring Supreme Court rulings, I think of how the current state of marijuana legalization is a hodgepodge of state laws which all openly violate the established federal law. These stand because they do represent the will of the majority that Jim describes in this article. But, from a legal and constitutional standpoint, they are problematic and suggest that states could "go rogue" on any number of other issues if they feel they have enough local support. Ike sent in the National Guard to enforce the desegregation at Little Rock High School. Does anyone expect the Feds to mobilize National Guard units to enforce any of the laws currently embattled, such as abortion, gun rights, marijuana, or voting rights themselves?
When I look at Alito's weird historical scavenger hunt approach, I am very confused by the logic. To argue that we must limit our understanding of the Constitution to the context of the late 1700s seems ridiculous, given how much life has changed. Surely the rules of football have been adjusted over time to protect player safety and competitiveness, without losing legitimacy as the rules of the game. To pretend that we need to view Constitutional rights through the lens of a world where only white men could vote, slavery was legal, and horseback (Paul Revere!) was the fastest way to broadcast a message would seem like a poor way to handle today's problems. Much has changed since those days: railroads, telephones, steamships, radio, TV, computers, the Internet, space travel, atomic weapons, plastics, climate change. To pretend that these things are irrelevant to Constitutional law risks making Constitutional law irrelevant to contemporary life.
And if we're going to try to think like a group of peri-wigged slaveowners in 1795, then why does he spend so many pages dredging up medieval precedents? The "it wasn't legal in Kent in 1385, so it can't be legal under the Constitution" argument is obviously anachronistic and hostile to the rights of anyone other than lords of the manor. By 1385 law, we'd nearly all be serfs, which I hope is not actually the goal here. And, although it may seem obvious, nobody in 1385 was allowed to keep a pistol in their home for "self defense" or to contribute unlimited funds to a political candidate. Times change and our understanding of how to apply the Constitution needs to be flexible enough to cope with new circumstances, or we will be as out of place as any ruler from the 1300s would be today.
I agree. These people are activist radicals, not "conservative" in any sense of the term .
It will be interesting to see whether the GOP bothers to revive its rhetoric about "legislating from the bench" and "judicial activism." Its Trump appointees (and Alito and Thomas) are doing that with a gusto none of their predecessors dared. I *expect* that we'll hear the same rhetoric nonetheless.
I expect the new court will become even more radical. Hard to believe that Thomas is the intellectual keystone in this court, but that's what seems to be true.
These new rulings -- and the more that will come -- recalls the Fugitive Slave Act that required Northern states to return fugitive slaves. That led to real conflict between state authorities and local populations vs. Federal authorities (notably here in Boston). I saw that coming here when the US Attorney Lelling was trying to arrest peaceable 'illegal immigrants', to the point where a local judge is under investigation for helping to spirit a fellow away when 'la migra' was waiting outside the courtroom. This is not an issue now that US Attorneys are Democrats, but I can imagine a new crop of Republican USAs trying to enforce other state abortion laws, for example. This would not be civil war, but simply government breakdown, which is where I sense we are heading.
Government breakdown--or "shutdown"--has been an explicit goal of a certain segment of the right for decades. At one time, they were seen as fringe kooks, and largely ignored by the GOP members who actually held power. But Trump's campaign and cabinet gave many of these people, such as Steve Bannon, positions of real power or influence. And the current world of social media and news reporting has allowed a few others, such as Marjorie Taylor Greene and Matt Gaetz, to become legislators and celebrities in their own right. So the pro-breakdown voices are gaining influence at the moment.
Of course, the breakdown of government is the stated goal of many racial terrorists who take violent action to oppose what they believe is the "great replacement" of white people. This is shown not only in the published statements of many recent shooters, but also in the novel that inspires many of them, the "Turner Diaries." In the novel, there is a scene where a mob attacks the US Capitol and brings out officials to hang on a gallows much like the one erected there on January 6th. So these once-fringe views have become much closer to reality in recent years.
A suggestion on any move to expand SCOTUS. This should be framed more broadly - we need to expand the federal judiciary. The size of SCOTUS and the duties of individual justices vis à vis the Circuit courts would be adjusted for the resulting enlargements. And perhaps we could address judicial ethics at the same time, no matter how distasteful the prospect would be for the Chief Justice. His current lack of system is self-evidently a failure. We shouldn’t leave Congressional impeachment as the only rule-making and enforcement tool.
What is chilling, on reflection, is the realization that the moralizing majority do not seem to think that this decision, and the other due process privacy rights they surely intend to target, will not be overturned. Why go out of your way to strike down "settled law" when you must know its an unpopular thing to do? Why not be clever about it, like Justice Roberts wants to do, and slowly whittle away until there is merely a thin nubby stick of a right left? If it is unpopular then certainly it is temporary in a democracy and will ultimately be overturned. And then...it hits. The moralizing majority do not think their unpopular decision will be overturned because...they don't expect a democracy to be around to stop them.
Honestly, I have an unwell feeling deep in the pit of my stomach.
Thanks for the link to the NPR record on the "settled law" comments from some of the liars...oops... justices, who voted to overturn Roe. It's a federal offense, lying to Congress, right? Should DOJ put them on its nervous plate along with prosecuting the Biggest Liar of all time? Oh, no, they have to be impeached, just like they did Him, who dare not speak his name.
Concerning Dobbs, Korematsu, public opinion, and the Court's legitimacy:
Korematsu (1944 case where the Supreme Court upheld transferring all West Coast citizens of Japanese descent to internment camps) has been called "one of the worst Supreme Court decisions of all time." Even Chief Justice Roberts condemned the decision in a 2018 decision. But the Court's ruling was widely supported by public opinion at the time, and it has been said that a decision in favor of Korematsu (plaintiff) would have created a constitutional crisis, threatening the Court's legitimacy. After all, the Court has zero enforcement power - it can only offer decisions, and if the other two branches of government refuse to abide by the Court's ruling, what could they do about it?
Dobbs, on the other hand, is supported by a minority of Americans, and in this case the Court is placing its legitimacy at even greater risk with its decision, rather than offering a ruling that had the effect of protecting its legitimacy as in 1944. As you point out, the ruling is an odious example of "we're doing it because we can." I'm reminded of Justice Souter's dissent in Bush v Gore, wherein the loser is "... the Nation’s confidence in the judge as an impartial guardian of the rule of law."
In the late 19th and early 20th centuries the Court stymied the growing Labor movement with the ridiculous notion that an individual worker had equal bargaining power with one entrepreneur who employed thousands. In the mid-20th century the Court was an anachronistic force that struck down several of FDR's New Deal programs - so much so that FDR was strongly urged to expand the Court, a suggestion that even then failed to gain popular support. So the Court has long been a conservative anchor that has held back progress in individual and collective rights that might otherwise have been achieved by legislation and/or executive edict.
But over time, the arc of the Court's rulings has "bent toward justice." This is the first time I know of when the opposite is true: when the Court sets the nation back a half century with a ruling that is clearly not supported by the majority. These 6 jurists have reversed the traditional role of the Court, protecting the minority from the tyranny of the majority, by promoting the tyranny of the minority over the majority. McConnell & Co. may be rejoicing that they won today's battle, but I fear they may end up losing the war - along with the rest of the nation.
The polling numbers and results of the past several elections indicate that they long-ago lost the support of the majority of US citizens on this issue. In fact, I'm pretty sure that polling has never shown a majority in favor of repealing Roe, even in the Reagan-era conservative heyday.
Thank you — excellent point about Korematsu as an illustration of a time when going with prevailing opinion was a grave defect. And of course agree about the court's economic-conservative bias through 75 years after the Civil War.
For the reasons you point out, the reality that Alito, Thomas, et al *actually went through* with this, even after the leak and everything else, is sobering and stunning. I remember the disgraceful Bush v. Gore ruling, and the eloquence of the dissent. (I think it was Stevens who closed that way, but whoever wrote it, was right.) But that was in an unexpected emergency situation. This was planned for a long time.
With help from SCOTUS and the GOP, American democracy is going to hell and we can't seem to figure out how to stop it. I especially appreciated your reiteration of majority/minority rule imbalances. Eek!
Thank you. One of my lines when living outside the US has been: Only a country with as much going in its favor as the US could withstand the flaws and dysfunctionality of the US system of national government — including the increasing bias toward minority rule. But being able to withstand those strains is not a given. I don't have any more of an answer than that right now.
I have sadly concluded that this nation will be torn apart in my lifetime by those who simply refuse to understand the spirit of the founding fathers' intentions, and actively seek to undermine those intentions for their own benefit. For the sake of my grandchildren, I hope I am wrong----but I see no evidence that the reactionary right has any interest in truth, fairness, or civil behavior.
We all know that the US has been through a lot — FOR INSTANCE, between 1861 and 1865. (And less obviously cataclysmic times before and after.) But the recklessness of this court, on top of the recklessness of Trump and his cabal, is a new kind of strain. Like you, I hope we'll eventually view all this as one more push toward the extremes, from which the system recovered. But, also like you, I have "hope" rather than clear evidence on which to base that right now.
A magnificent piece of commentary, very well thought out. One would have expected this kind of reflection to come out only weeks or months of an event. But we've been knowing about the expected outcome for some time, which has allowed Jim to prepare his thoughts in such an insightful way. The photo of Dred Scott and reference to Roger Taney are very appropriate
I was gearing up to do a post this morning about three great books I wanted to tout. And then I saw the news.... This was something we had all "expected." But having it actually occur was one of those moments where we'll always remember where we were, and how we heard.
In "The March of Folly" Barbara Tuchman defines folly as the tendency of governments to act against their own self-interest. To qualify as folly it must have been perceived as folly in its own time (see the comments to this post), have a feasible alternative course of action (given the ferociously unstoppable organization of the Republican Party and the utter inability of the Democratic Party to focus on anything, I'm not sure an effective one exists today), and the policy must have been that of a group and not an individual leader (the Republicans have both and I would say two of the latter, Trump and McConnell). The US has been called down and out more than once in our past and maybe we'll rally this time, too, but I am not hopeful.
And then just to put a cherry on my we're-all-going-to-hell-together-here cake, I recommend a series of books written by an SF writer named F.M. Busby (his Bran Tregare series), who imagined the existence of a future US taken over entirely by corporate interests. It ain't pretty, and it's looking more than a little prescient now.
Excellent piece - though I didn't have the heart to read it till today. As these latest decisions show. Trump didn't have to overturn the election to stay in power. We are still in the Trump era, and on certain questions we may be just at the beginning of what will be his legacy.
Terriffic analysis, Jim. Right up there with Greenhouse and Liptak today. Could there have been a worse time, given the chaotically polarized state of the country, for the SP to tackle Roe and guns.? Your remedies are right on but what chance, given the tyranny of the minority? Fate is indeed in the saddle, riding man. I am 85 and never thought I would end up worried about the future of our country . . . and my eight grandchildren.
Thanks. I think a lot depends on whether the Democrats are willing and able to frame this *radical* assault on the norms of American democracy, from Trump himself and from the three justices he got onto the court, as the emergency it is.
Not to beat a dead horse - but hearing some prominent voices respond by saying "now is not the time to abolish the filibuster" is... disheartening
I mean, 4 of the justices who made this ruling were confirmed with less than 60 votes. So, why is legislation held to a higher standard than justices who are more than willing to ignore and overturn it?
“ systematic rule by a minority,”
When I was growing up in the 70’s and early 80’s the phrase “minority rule” was often accompanied by “armed resistance to”. Couple that with the weakening of gun control by the Supreme Court and, well, I wonder if anyone in the GOP has any awareness of recent history.
for Deanna from Diana :) "With help from SCOTUS and the GOP, American democracy is going to hell and we can't seem to figure out how to stop it." The answer is to have a Voting Holiday, turn out the Vote. With the Vote, the people can make things change.
Most Americans now do not participate because they never had civic classes, never went with their high school to see the Town Selectmen and women doing their work at Town Hall. They don't know how the system works
Fortunately, many local Democratic offices and groups like Indivisible offer positive change. https://indivisible.org
The students in the 1960's and 1970's caused change with large, nonviolent protests, then with work on social change like anti-poverty programs. We stopped the Vietnam War and made the corrupt President resign. A lot of people went to jail when Congress had to act because student protests across the country shut down the economy and worried the parents, who voted.
"Never doubt that a small group of thoughtful, committed individuals can change the world. In fact, it's the only thing that ever has." Margaret Mead
"Gonna say it again: A country of bored middle-class narcissists who yearn for some sort of dramatic crusade to give meaning to their empty lives." Tom NIchols, on concealed gun carry topic
“All that was needed was an unending series of victories over your own memory.” George Orwell 1984
"...this is the lesson: never give in, never give in, never, never, never, never-in nothing, great or small, large or petty — never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy. " Prime Minister Winston Churchill's address to Harrow School on October 29, 1941
"The era of procrastination, of half-measures, of soothing and baffling expedients, of delays is coming to its close. In its place we are entering a period of consequences."
-- Winston Churchill, Nov. 12, 1936
The Dalai Lama once said
“if you think you’re too small to make a difference, try sleeping with a mosquito.”
"Think globally, act locally"
Jim --
To put your "imbalance of the Senate" and sudden relevance of the Electoral College in another light.
California has a population of 39.8 million and two Democratic senators. The 15 smallest states with two Republican Senators (Wyoming, Alaska, North Dakota, South Dakota, Idaho, Nebraska, Kansas, Mississippi, Arkansas, Utah, Iowa, Oklahoma, Kentucky, Louisiana and Alabama) have a population of 40.3 million.
Yes, piquantly and powerfully put.
And we here in my current home of DC are in an even less representative situation than that of my "real" home of Calif: More people than two states (WY and VT), but together they have four senators and two representatives, and zero for DC. DC's population is also closing in on North Dakota's.
I like your suggestions and i want to add one more - democratic congressional leaders bear some culpability here. You often make the point that "in any other field, Donald Trump would be disqualified." I don't know that Pelosi and Schumer could've done more - but in any other field, such a resounding defeat would lead to the Head Coach being fired, especially if he's not a rookie.
The fact that in the last decade they've been so thoroughly outmaneuvered on the biggest questions of the era that have considerable majority support - voting rights, individual autonomy, anti racism, gun control, climate change - and have seen all of those measures either stuck in the status quo or reversed, can only be described as failure.
Yes to all the points you've made - i don't know how they could've gotten around the way the opposition has hacked the system to rule by minority fiat - but nevertheless, they have failed. It may just be symbolic, but I think a changing of the guard is needed. Being preached to "don't get mad, get to the polls" is getting disheartening.
Thanks. I am agnostic on who should be leading the Democratic party — and Pelosi, in specific, has time and again shown that she knows things about the process of legislation. (For instance: the whole January 6 committee, and McCarthy's self-destructive pouting decision to pull "normal" GOP representation from it.) But, yes, generational change and youthful vigor is important. I'm in favor of it as it comes — and meanwhile concentrating on the main challenge, posed by the (also geriatric) Mitch McConnell and his bloc.
My world needs you, including whatever answers you have to offer. Really, it comforts me to know some among us are willing to contemplate what is happening, -- thus absolutely removing inevitability, according to Marshall McLuhan. I wonder whether I would still love McLuhan's THE MEDIUM IS THE MESSAGE; maybe. I do know I still love the promise of an alternative to succumbing to inevitability.
Thanks to you both — Deanna and Diana
"Local Indivisible groups build and wield power in ways that individuals can’t. To create change, you need the collective constituent power that comes with working together, as Indivisibles.
We’re a grassroots movement of thousands of local Indivisible groups with a mission to elect progressive leaders, rebuild our democracy, and defeat the Trump agenda."
https://indivisible.org
"We are stardust, we are golden
We are billion-year-old carbon
And we've got to get ourselves
Back to the garden "
Woodstock,Joni Mitchell
sung by Crosby, Stills and Nash
(it helps a lot to listen to 1960's protest songs and rock songs of that era about peace :)
Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed.
--Dwight D. Eisenhower, 1953
Excellent analysis Jim. This is a radical Court, not a conservative one. It is akin to Taney's Court, which sought to institutionalize the expansion of slavery for the sake of the Southern slaveocracy, which had lost its majority in Congress and was using the Court just as it is being used now (at the behest of the Greater South). As bad as the reversal of Roe is, at least it is now up to state legislatures, which can be influenced by the electorate. I am even more appalled by the gun ruling, which takes away from states the ability to regulate weapons. So much for my own confidence that at least here in Massachusetts we could maintain control over such issues. Calhoun's Nullification doctrine is beginning to look like an option....
But honestly, I think we are coming to a time where some states will refuse to obey the judgements of the Court and Federal government. Massachusetts. California and New England come to mind first.
Regarding the idea of states ignoring Supreme Court rulings, I think of how the current state of marijuana legalization is a hodgepodge of state laws which all openly violate the established federal law. These stand because they do represent the will of the majority that Jim describes in this article. But, from a legal and constitutional standpoint, they are problematic and suggest that states could "go rogue" on any number of other issues if they feel they have enough local support. Ike sent in the National Guard to enforce the desegregation at Little Rock High School. Does anyone expect the Feds to mobilize National Guard units to enforce any of the laws currently embattled, such as abortion, gun rights, marijuana, or voting rights themselves?
When I look at Alito's weird historical scavenger hunt approach, I am very confused by the logic. To argue that we must limit our understanding of the Constitution to the context of the late 1700s seems ridiculous, given how much life has changed. Surely the rules of football have been adjusted over time to protect player safety and competitiveness, without losing legitimacy as the rules of the game. To pretend that we need to view Constitutional rights through the lens of a world where only white men could vote, slavery was legal, and horseback (Paul Revere!) was the fastest way to broadcast a message would seem like a poor way to handle today's problems. Much has changed since those days: railroads, telephones, steamships, radio, TV, computers, the Internet, space travel, atomic weapons, plastics, climate change. To pretend that these things are irrelevant to Constitutional law risks making Constitutional law irrelevant to contemporary life.
And if we're going to try to think like a group of peri-wigged slaveowners in 1795, then why does he spend so many pages dredging up medieval precedents? The "it wasn't legal in Kent in 1385, so it can't be legal under the Constitution" argument is obviously anachronistic and hostile to the rights of anyone other than lords of the manor. By 1385 law, we'd nearly all be serfs, which I hope is not actually the goal here. And, although it may seem obvious, nobody in 1385 was allowed to keep a pistol in their home for "self defense" or to contribute unlimited funds to a political candidate. Times change and our understanding of how to apply the Constitution needs to be flexible enough to cope with new circumstances, or we will be as out of place as any ruler from the 1300s would be today.
I agree. These people are activist radicals, not "conservative" in any sense of the term .
It will be interesting to see whether the GOP bothers to revive its rhetoric about "legislating from the bench" and "judicial activism." Its Trump appointees (and Alito and Thomas) are doing that with a gusto none of their predecessors dared. I *expect* that we'll hear the same rhetoric nonetheless.
I expect the new court will become even more radical. Hard to believe that Thomas is the intellectual keystone in this court, but that's what seems to be true.
These new rulings -- and the more that will come -- recalls the Fugitive Slave Act that required Northern states to return fugitive slaves. That led to real conflict between state authorities and local populations vs. Federal authorities (notably here in Boston). I saw that coming here when the US Attorney Lelling was trying to arrest peaceable 'illegal immigrants', to the point where a local judge is under investigation for helping to spirit a fellow away when 'la migra' was waiting outside the courtroom. This is not an issue now that US Attorneys are Democrats, but I can imagine a new crop of Republican USAs trying to enforce other state abortion laws, for example. This would not be civil war, but simply government breakdown, which is where I sense we are heading.
Government breakdown--or "shutdown"--has been an explicit goal of a certain segment of the right for decades. At one time, they were seen as fringe kooks, and largely ignored by the GOP members who actually held power. But Trump's campaign and cabinet gave many of these people, such as Steve Bannon, positions of real power or influence. And the current world of social media and news reporting has allowed a few others, such as Marjorie Taylor Greene and Matt Gaetz, to become legislators and celebrities in their own right. So the pro-breakdown voices are gaining influence at the moment.
Of course, the breakdown of government is the stated goal of many racial terrorists who take violent action to oppose what they believe is the "great replacement" of white people. This is shown not only in the published statements of many recent shooters, but also in the novel that inspires many of them, the "Turner Diaries." In the novel, there is a scene where a mob attacks the US Capitol and brings out officials to hang on a gallows much like the one erected there on January 6th. So these once-fringe views have become much closer to reality in recent years.
A suggestion on any move to expand SCOTUS. This should be framed more broadly - we need to expand the federal judiciary. The size of SCOTUS and the duties of individual justices vis à vis the Circuit courts would be adjusted for the resulting enlargements. And perhaps we could address judicial ethics at the same time, no matter how distasteful the prospect would be for the Chief Justice. His current lack of system is self-evidently a failure. We shouldn’t leave Congressional impeachment as the only rule-making and enforcement tool.
Excellent point, thank you, will try to get this message spread around.
What is chilling, on reflection, is the realization that the moralizing majority do not seem to think that this decision, and the other due process privacy rights they surely intend to target, will not be overturned. Why go out of your way to strike down "settled law" when you must know its an unpopular thing to do? Why not be clever about it, like Justice Roberts wants to do, and slowly whittle away until there is merely a thin nubby stick of a right left? If it is unpopular then certainly it is temporary in a democracy and will ultimately be overturned. And then...it hits. The moralizing majority do not think their unpopular decision will be overturned because...they don't expect a democracy to be around to stop them.
Honestly, I have an unwell feeling deep in the pit of my stomach.
I had not dared to think of it in these terms ....
Thanks for the link to the NPR record on the "settled law" comments from some of the liars...oops... justices, who voted to overturn Roe. It's a federal offense, lying to Congress, right? Should DOJ put them on its nervous plate along with prosecuting the Biggest Liar of all time? Oh, no, they have to be impeached, just like they did Him, who dare not speak his name.
Bill, thanks. I fear that the only consequence for these people will be "shame." And we know how heavily that will weigh!
Concerning Dobbs, Korematsu, public opinion, and the Court's legitimacy:
Korematsu (1944 case where the Supreme Court upheld transferring all West Coast citizens of Japanese descent to internment camps) has been called "one of the worst Supreme Court decisions of all time." Even Chief Justice Roberts condemned the decision in a 2018 decision. But the Court's ruling was widely supported by public opinion at the time, and it has been said that a decision in favor of Korematsu (plaintiff) would have created a constitutional crisis, threatening the Court's legitimacy. After all, the Court has zero enforcement power - it can only offer decisions, and if the other two branches of government refuse to abide by the Court's ruling, what could they do about it?
Dobbs, on the other hand, is supported by a minority of Americans, and in this case the Court is placing its legitimacy at even greater risk with its decision, rather than offering a ruling that had the effect of protecting its legitimacy as in 1944. As you point out, the ruling is an odious example of "we're doing it because we can." I'm reminded of Justice Souter's dissent in Bush v Gore, wherein the loser is "... the Nation’s confidence in the judge as an impartial guardian of the rule of law."
In the late 19th and early 20th centuries the Court stymied the growing Labor movement with the ridiculous notion that an individual worker had equal bargaining power with one entrepreneur who employed thousands. In the mid-20th century the Court was an anachronistic force that struck down several of FDR's New Deal programs - so much so that FDR was strongly urged to expand the Court, a suggestion that even then failed to gain popular support. So the Court has long been a conservative anchor that has held back progress in individual and collective rights that might otherwise have been achieved by legislation and/or executive edict.
But over time, the arc of the Court's rulings has "bent toward justice." This is the first time I know of when the opposite is true: when the Court sets the nation back a half century with a ruling that is clearly not supported by the majority. These 6 jurists have reversed the traditional role of the Court, protecting the minority from the tyranny of the majority, by promoting the tyranny of the minority over the majority. McConnell & Co. may be rejoicing that they won today's battle, but I fear they may end up losing the war - along with the rest of the nation.
The polling numbers and results of the past several elections indicate that they long-ago lost the support of the majority of US citizens on this issue. In fact, I'm pretty sure that polling has never shown a majority in favor of repealing Roe, even in the Reagan-era conservative heyday.
Thank you — excellent point about Korematsu as an illustration of a time when going with prevailing opinion was a grave defect. And of course agree about the court's economic-conservative bias through 75 years after the Civil War.
For the reasons you point out, the reality that Alito, Thomas, et al *actually went through* with this, even after the leak and everything else, is sobering and stunning. I remember the disgraceful Bush v. Gore ruling, and the eloquence of the dissent. (I think it was Stevens who closed that way, but whoever wrote it, was right.) But that was in an unexpected emergency situation. This was planned for a long time.
With help from SCOTUS and the GOP, American democracy is going to hell and we can't seem to figure out how to stop it. I especially appreciated your reiteration of majority/minority rule imbalances. Eek!
Thank you. One of my lines when living outside the US has been: Only a country with as much going in its favor as the US could withstand the flaws and dysfunctionality of the US system of national government — including the increasing bias toward minority rule. But being able to withstand those strains is not a given. I don't have any more of an answer than that right now.
I have sadly concluded that this nation will be torn apart in my lifetime by those who simply refuse to understand the spirit of the founding fathers' intentions, and actively seek to undermine those intentions for their own benefit. For the sake of my grandchildren, I hope I am wrong----but I see no evidence that the reactionary right has any interest in truth, fairness, or civil behavior.
We all know that the US has been through a lot — FOR INSTANCE, between 1861 and 1865. (And less obviously cataclysmic times before and after.) But the recklessness of this court, on top of the recklessness of Trump and his cabal, is a new kind of strain. Like you, I hope we'll eventually view all this as one more push toward the extremes, from which the system recovered. But, also like you, I have "hope" rather than clear evidence on which to base that right now.
A magnificent piece of commentary, very well thought out. One would have expected this kind of reflection to come out only weeks or months of an event. But we've been knowing about the expected outcome for some time, which has allowed Jim to prepare his thoughts in such an insightful way. The photo of Dred Scott and reference to Roger Taney are very appropriate
Tom, thank you very much.
I was gearing up to do a post this morning about three great books I wanted to tout. And then I saw the news.... This was something we had all "expected." But having it actually occur was one of those moments where we'll always remember where we were, and how we heard.