Rule by Judges

The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.

– Justices Breyer, Kagan, and Sotomayor
dissent in Dobbs v Jackson Women’s Health

This week’s featured posts are “Three Supreme Court decisions with long-term consequences” and “The January 6 hearings are accomplishing more than you think.

This week everybody was talking about the Supreme Court

Friday’s announcement that the reversal-of-Roe that leaked in May is indeed the decision overshadowed all other developments. But it was not the only radical and consequential thing the Court did this week: It blew a hole in the wall between church and state in Carson v Makin, and it further restricted states’ power to control guns in NY State Rifle & Piston v Bruen.

I discuss the opinions themselves in the first featured post. Here I want to consider consequences. All three of these decisions look like the first of many: As sweeping as the Dobbs decision is, it sets up a reconsideration of all rights based on a legal doctrine known as substantive due process (which I explained in March): the right to access contraceptives, to marry a person of the same sex or a different race, and for consenting adults to choose their own sexual practices. Carson will make it difficult to deny government funding to religious organizations in a wide variety of settings. Bruen calls a long list of gun regulations into question.

Planned Parenthood provides an interactive map that allows you to see the current abortion restrictions in any state. Abortion is already illegal in the black states, and severely restricted in the dark red states (many of which will probably ban it entirely before long).

Exactly what illegality means is still being worked out in many states. Mother Jones raises a good question: “If Abortion is Illegal, Will Every Miscarriage Be a Potential Crime?” If it is, who is the criminal — the woman, or just the doctor? What if the abortion takes place in a different state, where it is legal? My social media is full of people in blue states offering to help women come to their state for abortions. Will they be accessories, who dare not show their faces in Texas or Mississippi for fear of arrest?

What if a miscarriage (or a birth defect) results from negligence rather than intent? Is that manslaughter? As Dana Sussman of National Advocates for Pregnant Women puts it: “You can’t add fetuses to the community of individuals who are entitled to constitutional rights without diminishing the rights of the person carrying that fetus.”

The impact this decision will have on the midterm elections, or on all future elections, is hard to gauge. In particular, what happens to educated suburban women, the “soccer moms” who supported Bush and Romney but had trouble stomaching Trump? Will they turn out in force and vote Democratic, or will their generally conservative leanings on economic issues keep them voting Republican?

A brief message to pro-choice women: Make sure the men in your life know how seriously you take the Court’s decision, and the new laws that it will inspire.

I say this because my 65 years of male experience have taught me something about how men think. A man, even one who ought to know you better than this, is likely to imagine that losing reproductive rights isn’t that big a deal to you because (1) you want to have a child anyway; or (2) you’re unlikely to get pregnant; or (3) you’re past childbearing age. He may not grasp that you take this assault on your rights personally, or be able to imagine why. But he may listen if you tell him. (If he won’t listen, you might want to reconsider his role in your life.)

Susan Collins now feels she was “misled” by Brett Kavanaugh and possibly other justices during their confirmation hearings. Of course, everyone in the world was telling her at the time that she was being a gullible fool, but she still doesn’t own up to that. I am reminded of her vote for the Trump tax cut, which Mitch McConnell got in exchange for promises that turned out to be worthless. But Collins dismissed criticism of her gullibility as sexist.

I didn’t cover this in the featured post, but a fourth important decision limited the consequences police will face if they don’t give suspects a Miranda warning before questioning them.

And just this morning, the Court launched another attack on the separation of church and state by siding with a high school football coach who led prayers at the 50-yard-line after games. The coach is, of course, Christian. No one from any other religion would imagine that he had such a right.

and the continuing revelations of the 1-6 hearings

This week the 1-6 Committee held its fourth [video transcript] and fifth [video transcript] public hearings.

Both were gripping hearings. The fourth hearing centered on Trump’s pressure on state and local officials to change the election results. As always, most of the witnesses were Republicans who wanted Trump to win, but wouldn’t cheat for him.

Rusty Bowers is the Speaker of the House in Arizona. He testified about how Trump and Rudy Giuliani pressured him to call a special session of the legislature, so that Arizona could decertify its Biden electors. They promised him evidence of massive voter fraud, but never delivered any. Bowers gave an emotional statement about how his Mormon faith teaches that the Constitution is divinely inspired, and that he would never go against the Constitution just “because somebody asked me”.

Georgia Secretary of State Brad Raffensperger told the story of the famous phone call where Trump refused to listen to his refutation of Trump’s election-fraud claims, and urged him to “find” enough votes for Trump to win the state. His subordinate Gabriel Sterling explained why he publicly warned Trump that “somebody’s going to get killed” if he kept pushing his election-fraud deceptions.

But the heart-wrenching moment of the fourth hearing was the testimony of Shaye Moss (supplemented by the taped testimony of her mother), who was a Georgia election worker that Trump targeted falsely as a perpetrator of the “election fraud” that kept him from winning Georgia. Trump had to know, if he bothered to think about it at all, what his followers would do.

Moss testified about the impact Trump’s lies had on her life, including telling about a panicked phone call she got from her grandmother:

I received a call from my grandmother. This woman is my everything. I’ve never even heard her or seen her cry ever in my life. And she called me screaming at the top of her lungs, like, “Shaye, Shaye, oh my gosh, Shaye.” Just freaking me out saying that there are people at her home and they, you know, they knocked on the door and of course she opened it seeing who was there, who it was.

And they just started pushing their way through, claiming that they were coming in to make a citizen’s arrest. They needed to find me and my mom. They knew we were there. And she was just, like,screaming and didn’t know what to do. And I wasn’t there. So, you know, I just felt so helpless and so horrible for her.

Both Shaye and her mother (who also was an election worker and also was targeted by Trump) said that they were still afraid to go out in public, and afraid to let anyone know who they are. It was easy to see the signs of depression in her testimony.

I felt horrible. I felt like it was all my fault, like if I would have never decided to be an elections worker, like, I could have — like, anything else, but that’s what I decided to do. And now people are lying and spreading rumors and lies and attacking my mom, I’m her only child, going to my grandmother’s house.

I’m her only grandchild. And — and my kid is just — I felt so bad. I — I just felt bad for my mom, and I felt horrible for picking this job and being the one that always wants to help and always there, never missing not one election. I just felt like it was — it was my fault for putting my family in this situation.

The President of the United States did this. We’ve gotten used to Trump falsely and baselessly attacking political rivals or well-known journalists or even non-political celebrities like LeBron James. But this was him picking out an ordinary American who did nothing wrong, and just ruining her life.

The fifth hearing centered on the Justice Department, and Trump’s effort to get DoJ officials to back up election-fraud claims that they had investigated and knew were lies. This effort culminated in a January 3 meeting at the White House, in which Trump proposed replacing Acting Attorney General Jeff Rosen, who wouldn’t make false claims on his behalf, with Jeff Clark, who would.

Ultimately it fell apart not because anyone convinced him the scheme was wrong, but because it wouldn’t work. The entire DoJ leadership would resign, including Office of Legal Counsel head Steven Engel. Engel warned Trump:

look, all anyone is going to sort of think about when they see this — no one is going to read this letter [that Clark wanted to send to leaders of the Georgia legislature, falsely claiming that the DoJ had found evidence of fraud]

All anyone is going to think is that you went through two attorneys general in two weeks until you found the environmental guy to sign this thing. And so, the story is not going to be that the Department of Justice has found massive corruption that would have changed the result of the election. It’s going to be the disaster of Jeff Clark.

Video was shown of the committee asking Clark about these events: He repeatedly pleaded the Fifth and executive privilege (which are contradictory claims; if no crime is involved, the Fifth doesn’t apply; if a crime is involved, there’s no executive privilege).

And the grand finale of Thursday’s session was the list of GOP congresspeople who sought pardons from Trump: Mo Brooks, Matt Gaetz, Andy Biggs, Louie Gohmert, Scott Perry, and Marjorie Taylor Green.

What did they think they had done, that they would need a pardon for?

and whether the hearings are changing anything

They’re accomplishing more than you think. That’s the topic of the second featured post.

and gun legislation

Any other week, this would be a big story. Today, it’s hard to find space for it.

Two weeks ago a bipartisan group of senators announced that it had settled on a framework for legislation to do at least something in response to the Uvalde school shooting and the surge of other mass shootings. Last week it looked like the agreement might blow up as they tried to write a bill based on that framework. This week it passed both houses of Congress and is awaiting President Biden’s signature.

The bill is simultaneously an accomplishment and a disappointment. Here’s what the bill does:

  • requires enhanced background checks for young adults 18-21 to buy a gun, and gives authorities ten days (up from three) to perform the checks;
  • gives states $750 million in incentives to implement red-flag laws, which temporarily take guns away from people a judge deems dangerous;
  • appropriates money for mental health and school safety;
  • extends federal law that stops domestic abusers from buying guns, so that it now covers dating partners as well as spouses, live-in partners, and co-parents;
  • makes certain kinds of interstate gun trafficking a federal crime.

What it doesn’t do is ban assault weapons or high-capacity magazines, establish universal background checks on gun purchases, prevent assault-weapon purchases by young adults 18-21, or enact a federal red-flag law.

As small as these steps are, the bill is the first tightening of gun laws since the Clinton administration. The fact that 15 Republican senators and 14 Republican representatives were willing to vote for it — in spite of heated opposition from the NRA and some wild attacks from Fox News — is significant. The next few elections will be tests of the gun lobby’s power: If these senators are ousted in Republican primaries by pro-gun challengers, this might be the last federal gun-control legislation for another few decades. If they aren’t, the NRA’s stranglehold on the GOP might be broken.

and you also might be interested in …

The pandemic keeps chugging along at the level of about 100K new cases per day. Deaths are increasing slightly, running around 350 per day.

The European Union has formally accepted Ukraine as a candidate to join the Union.

Herschel Walker stories just get weirder and weirder. Somebody found a tape of him claiming his mulitiple personality disorder isn’t a mental illness. He offers this interesting theological notion:

Do our Lord Jesus Christ have a mental illness because he said he’s the father, the son and the Holy Spirit? To me, those are 3 different personalities.

I thought I had heard every possible explanation of the Trinity, but that one is new to me. Georgia Republicans must be so proud, particularly the Christian ones.

I don’t like to read too much into what are obviously slips of the tongue, because we all have them, and a harsh standard of judgment would hurt everybody. But this is hard to ignore: Appearing with President Trump Saturday in Mendon, Illinois — not far from where I grew up; the rally was at the county fairgrounds, where I remember seeing a talent show and a tractor pull and eating cotton candy — Rep. Mary Miller said:

I want to thank you for the historic victory for white life in the Supreme Court yesterday.

Apparently she meant to say “right to life”, not “white life”. But according to NBC, the crowd — which had no way of knowing that something different was in her script — cheered. “Victory for white life” sounded good to them.

Q appears to be back.

and let’s close with something musical

Here’s proof that anything is musical if you have an ear for it. The Floppotron 3.0 orchestra uses 512 floppy disk drives, 16 hard drives, and four flatbed scanners to play the Imperial March from Star Wars. Somebody had to hear all those noises and imagine what could be done with them.

The January 6 hearings are accomplishing more than you think

You may not see it, if you don’t understand how conservatives change their minds.

After more than two years of Covid, persistent inflation, and a year or so of Democrats failing to either eliminate the Senate filibuster or pass anything significant in spite of it, lots of us have gotten depressed. One result of that widespread depression is that every news story is seen through a lens that is dim to the point of blackness: Nothing good is happening, because nothing good can happen. That’s just how the world is. Even stuff that looks good for a while will ultimately turn out badly.

So it’s no wonder that even the January 6 hearings — which have contained startling new information and dramatic testimony, presented with considerable narrative skill — are often being construed as yet another disappointment, yet another example of America’s endemic hopelessness: Sure, the ratings have been better than expected, but the only people watching are the people who don’t need to watch. They were already convinced Trump was guilty. That’s why they’re watching.

Fox News, on the other hand, is pretending the hearings aren’t happening, and the MAGA cultists are averting their eyes. Sean Hannity and Tucker Carlson are talking about Biden falling off his bicycle or some other trivia. So what’s being accomplished?

Let me suggest a radical reinterpretation of these facts: MAGAworld refusing to engage is a good sign. This is exactly what you should have expected to see if things were going well.

That reframing depends on understanding two things: First, nothing gets watched by everybody, and yet somehow the information gets out. You didn’t have to watch the Super Bowl to learn that the Rams won. People who have never seen Star Wars know who Luke Skywalker and Darth Vader are; if you talk about a “flaw in the Death Star”, they’ll get the metaphor. Hit songs you don’t like nonetheless get into your head. Personally, I have done my best not to keep up with the Kardashians, but there seems to be no way to avoid it.

So don’t think Trumpists aren’t learning anything from these hearings.

But the more important thing you need to appreciate is how conservatives change their minds. They do it without ever admitting they were wrong. Typically the process goes like this:

  1. “I believe X, and anybody who denies X hates America.”
  2. Silence.
  3. “I never believed X. The people behind X were never true conservatives.”

Blocking out the hearings is Step 2. They’re looking away because they know they have no answers. If they thought they could take on this argument and win, at least in their own eyes, they’d be all over it. Fox News could be doing nightly counter-programming, tearing apart the committee’s witnesses and letting John Eastman and Rudy Giuliani and Jeff Clark explain their side of the story. Mike Pence and Pat Cipollone could be begging to testify under oath, so they could refute all the other witnesses’ testimony.

It’s not happening. Even the most blinder-wearing Trumpist understands that his side doesn’t dare take the field in this battle. Even if they don’t understand why, it’s got to be undermining their confidence.

Instead, there’s silence. Step 2.

The clearest historical example of the three-step process is White Evangelicals and segregation. During the 50s and 60s when the issue was being decided, White Evangelicals almost unanimously defended Jim Crow. Jerry Falwell, for example, preached in 1958:

If Chief Justice Warren and his associates had known God’s word and had desired to do the Lord’s will, I am quite confident that the 1954 decision [to desegregate public schools] would never have been made. The facilities should be separate. When God has drawn a line of distinction, we should not attempt to cross that line.

Today, if you look, you can still find openly white-separatist branches of Christianity. But they’re on the fringes. No big-name preacher of the Religious Right would denounce Brown v Board of Education in the stark terms Falwell used.

But you know what you won’t find? A come-to-Jesus moment when some major preacher announced that he had been wrong about race, begged God’s forgiveness for his errors, and implored his congregation to turn themselves around in a similar way.

It never happened.

Instead, sometime in the 70s most right-wing preachers just stopped talking about the bad old days of Jim Crow. (Falwell’s segregationist sermons quietly disappeared from his church’s web site. Today, the only place you’ll find the quote above is in anti-Falwell articles.) And years later, when they started talking about the Civil Rights movement again, they had always been on the right side of it. After all, Martin Luther King Jr. was a Baptist, right?

Same thing with George W. Bush and the Iraq War. In 2002, nobody was hotter to invade Iraq than conservatives, and after the initial invasion overran the country quickly with few American casualties, right-wingers were arguing about just how high Bush should rank on the list of our greatest presidents. (Probably not in the Washington/Lincoln stratosphere. But maybe in the Reagan/Truman tier.)

Sometime during his second term, though, they started to go silent about Bush’s greatness, and by 2010, the Tea Party was claiming that Bush had never really been a conservative at all. Bush went from the highest presidential approval rating ever recorded — 90% in 2001 — to one of the lowest — 25% in 2008. During that whole time, though, I don’t remember hearing anyone admit that they’d been wrong about him.

There was no I-have-seen-the-light moment about Iraq comparable to Walter Cronkite turning against the Vietnam War. Conservatives just went silent for a while, and when they spoke up again, it was to claim that they had always been on the other side. Donald Trump is a perfect example. At first he was for the invasion. Then he thought it was a good idea that Bush had screwed up. Then he had always been against it.

So if you’re depressed that no MAGA types are facing up to the way that Trump fooled them, don’t be. That was never going to happen. But it doesn’t mean that Trump won’t someday be a friendless pariah.

I feel very confident in predicting that there will never be a we-were-wrong-about-Trump moment, either for the GOP in general or for your cousin who posted all those MAGA memes on social media. But you know what could happen? They might focus their outrage on something else for a while — critical race theory or transgender people or something — and then at some point start saying, “Trump did a lot of good things, and I like his Supreme Court picks, but I never bought all his bullshit.”

That could be happening right now.

Three Supreme Court decisions with long-term consequences

Scrapping abortions rights got the headlines. But don’t ignore the Court’s assault on gun regulations and the separation of church and state.

Late June tends to be a big time for the Supreme Court. Like freshmen who have put off writing their term papers until the last minute, the Court typically unleashes a flurry of decisions just before leaving town for the summer.

The end of this term has been more significant than most. Last week, three major decisions were published, along with several lesser decisions. The Dobbs decision reversing Roe v Wade was immediately consequential, as abortion has already effectively become illegal in a number of states, with more to follow soon. But it also laid the groundwork for future decisions reversing a number of rights: the right to marry someone of the same sex or a different race, to access contraception, or to choose (with your consenting partner) your own sexual practices.

The week’s other two decisions had fewer immediate consequences, but similarly looked like the first steps down a long road. Carson v Makin directly affects only a few families in rural Maine, but announces the Court’s intention to drastically redraw the line between Church and State. NY State Rifle & Pistol v Bruen tosses out a New York gun regulation that has stood for a century, but similarly calls all gun regulations into question.

Let’s take them one by one.

Abortion. Justice Alito’s majority opinion striking down Roe v Wade has barely changed since I wrote about the draft that leaked out in May. So I won’t repeat that material, but instead will focus on the concurrences and dissents from other justices.

Justice Alito’s majority opinion tried to minimize the consequences of this decision, which on the surface only [only!] reversed Roe, but also created a blueprint for throwing out all the substantive-due-process rights. Justice Thomas, on the other hand was explicit about where he wants the Court to go next:

in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”, we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.

Thomas forgot to mention one other substantive-due-process case: Loving v Virginia, which makes his own interracial marriage legal. (I can see how that might start a difficult conversation: “Sorry, honey, but we were never really married.”) Given the anti-miscegenation laws that existed when the 14th Amendment passed in 1868, it’s hard to see how Loving survives the kind of historical analysis the Court did this week in both Dobbs and Bruen.

Leaning the other way, Justice Kavanaugh not only ignored future reversals, but tried to gloss over the radical nature of this one:

On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.

The obvious implication of that statement is that Kavanaugh would not overrule Congress if it did codify reproductive rights. However, given how duplicitous Kavanaugh has already been on this issue, I wouldn’t count on him following through if such a case reached the Court.

He also waxed philosophical:

The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.

I’ll be interested to see if Kavanaugh stands by this position the next time a corporate personhood case comes before the Court. The Constitution says nothing about corporations, and yet conservative judges have had no trouble reading between the lines to find “new rights and liberties” for these wealthy and immortal beings.

As I predicted in March, Chief Justice Roberts concurred in upholding Mississippi’s ban on abortions after 15 weeks, but not in overturning Roe completely.

Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.

That’s typical Roberts, as you’ll see below in the Carson case. He also would destroy Roe, but do it over a period of years by pecking it to death. In this dissent, he makes a doctrine out of that approach:

If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

Going back to the corporate personhood example, Roberts didn’t recommend this kind of restraint in Citizens United.

The Court’s three liberal justices — Breyer, Kagan, and Sotomayor — wrote a common dissent. Interestingly, they agreed with Thomas that abortion rights are tied to all the other substantive-due-process rights.

The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

The dissent challenges the legitimacy of ignoring stare decisis to reverse the Roe and Casey precedents.

No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. … The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Today, the proclivities of individuals rule.

It attacks Alito’s history-alone reasoning. If “liberty” means exactly what it did in 1868, that has a lot of unfortunate consequences, particularly for women.

The Court [in Casey] understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. A woman then, Casey wrote, “had no legal existence separate from her husband.” Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.”

Guns. In Bruen, Justice Thomas writes for the six conservative justices. Thomas is the justice whose thought process seems most alien to me, and here he loses me early on:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

Heller is the 2008 case in which Justice Scalia invented an individual right to bear arms, independent of any notion of “a well-regulated militia”, as if the Founders just threw that phrase into the Second Amendment on a whim.

Judges and legal scholars before Scalia had laughed at this interpretation, which had not figured in any previous Supreme Court decision since the beginning of the Republic. In 1990, retired Chief Justice Warren Burger, who had been appointed by Richard Nixon and at the time was not anyone’s idea of a liberal, called such an interpretation of the Second Amendment “a fraud on the American public“. John Paul Stevens, who wrote the primary dissent in Heller, called it “the Supreme Court’s worst decision of my tenure“.

And then we get to “the Second Amendment’s plain text”. I have explained previously (and at length) why I don’t think the text of the Second Amendment means anything at this point. (Briefly, the Founders’ vision of the role of the militia bears no resemblance to any institution that currently exists: not the National Guard, and certainly not self-appointed yahoos who run around in the woods wearing camo. History just went a different way. The Second Amendment, basically, is a signpost on a road not taken.) So the idea that the Second Amendment has a “clear text” that “covers” something in today’s world — that’s just wrong. If we can’t repeal it and start over, the most sensible approach would be to ignore it.

Anyway, Heller is the archetypal “originalist” decision: It does some grammatical sophistry that has basically nothing to do with the issues the Founders actually cared about, and then — surprise! — deduces that the Founders agreed with the author.

This is what Thomas is building on.

Thomas follows the statement above with:

The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The regulation in question in this case is New York’s state law that requires gun owners to have a license, and which denies licenses for people to carry guns outside their homes unless they “demonstrate a special need for self-protection distinguishable from that of the general community.” The two New Yorkers bringing suit claim that it should be up to them to decide if they need a gun for self-defense, not up to the state.

Thomas then has to judge whether this regulation is “consistent with the Nation’s historical tradition of firearm regulation”. But he then edits that history in a very convenient way: Pre-colonial English history is too early to matter (though it wasn’t when assessing abortion laws in Dobbs). Gun regulations in the Wild West come too late. Even colonial and federal-era history can be swept away with the proper hand-waving.

Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

And two post-Civil-War cases in Texas “support New York’s proper-cause requirement”, but they can be dismissed as “outliers”. When the Kansas Supreme Court upheld a “complete ban on public carry enacted by the city of Salina in 1901”, its decision was “clearly erroneous”. And the New York law Thomas is overturning was passed in 1911. (Justice Breyer’s dissent correctly sums up Thomas’ historical analysis as “a laundry list of reasons to discount seemingly relevant historical evidence.” The dissent in Dobbs makes fun of how Thomas’ cramped view of history in this case contrasts with Alito’s expansive citation of sources back to the Middle Ages in Dobbs. Thomas, naturally, signed on to Alito’s opinion, and his concurrence did not correct Alito’s historical analysis.)

Thomas’ whole historical method ignores the possibility that early American legislators believed they had a perfect right to regulate firearms, but didn’t see any special need at the time. (Breyer: “In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs.”)

And so, having adopted Heller’s interpretation of the Second Amendment and eliminated any conflicting examples from consideration, Thomas reaches his conclusion.

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.

Justice Breyer’s dissent raises the central failing of Thomas’ dogmatic approach.

The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.

In other words, Thomas loses himself in estimating how many angels could dance on a pinhead in the 1790s, without any concern for what is happening today. (Alito’s concurrence berates Breyer for even daring to consider the present-day problem the law in question is trying to address.) Breyer finds that “decisions about how, when, and where to regulate guns [are] more appropriately legislative work”, and that judges should show “modesty and restraint” in overruling legislatures who take on that work. And he raises this key question:

[W]ill the Court’s approach permit judges to reach the outcomes they prefer and then cloak
those outcomes in the language of history?

I think we know the answer to that one.

Church and State. Because John Roberts doesn’t sign on to decisions like Alito’s reversal of Roe, he has gotten an image as the “moderate” on the Court. I don’t think that’s exactly true. Roberts is every bit as radical as the five who signed Alito’s opinion. He just moves towards his extreme goals in a stealthier, more step-by-step fashion. Roberts is like the thief who doesn’t strip your whole orchard in one night; but he leaves a hole in the fence and keeps coming back.

Campaign finance is a good example. Roberts didn’t destroy Congress’ ability to control political contributions in one fell swoop. He ate away at it over a period of years.

His majority opinion in Carson v Makin is similarly one of a series of cases that eats away at separation of church and state. On the surface, this decision doesn’t do much: A handful of families who live in rural areas of Maine will be able to get state support to send their children to conservative Christian schools, in spite of the Maine legislature’s attempt not to fund such schools. (And even they won’t get support for the schools they want, because Maine’s law also disqualifies schools that discriminate against gays and lesbians.)

To get that tiny result, though, Roberts blows a big hole in the wall between church and state. New cases will be coming through that hole for years to come, and the principles established in Carson will funnel more and more public funding to the Religious Right.

Here’s the background: Some rural areas of Maine have so few students that it’s not worth supporting a public high school. Instead, some of them contract with high schools in neighboring districts to take their students. But some don’t even do that. If you live in one of those, you can get tuition reimbursement from the state to send your children to a private high school that meets certain requirements. One requirement is that the school be “nonsectarian”. That condition was added in 1981, after the state attorney general ruled that paying tuition to a sectarian school would violate the Establishment Clause of the First Amendment.

Maine has a fairly narrow definition of “sectarian”. It’s OK for a school to be founded by or associated with a church or other religious organization. But public money was banned from going to a school which

in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.

The two families that brought suit against this policy live in Glenburn (population 4,648) and Palermo (1,570). They want Maine to help them pay tuition to schools that clearly are sectarian. For example, one of the schools, Temple Academy, has as its mission statement:

Temple Academy exists to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.

It goes on to pledge

To provide a sound academic education in which the subject areas are taught from a Christian point of view.

To help every student develop a truly Christian world view by integrating studies with the truths of Scripture.

So Temple is not like a nominally Catholic or Baptist school where students of other faiths might opt out religion classes or worship services. Students who attend any classes at all are being indoctrinated in a conservative Christian worldview, and part of every teacher’s job is to promote a particular version of Christianity.

Also, the Maine law is not like a voucher program, where the legislature delegates choice of schools to parents, understanding that some parents will choose sectarian schools. Maine’s legislature tried NOT to fund religious indoctrination; but Roberts’ decision says that it MUST.

This is new, and it is radical.

Justice Breyer’s dissent (Breyer, who is retiring and will be replaced next term by Ketanji Brown Jackson, is going out with a bang) is a good introduction to how the Court has historically interpreted the First Amendment, which bars any government “establishment of religion” but also guarantees individual citizens “free exercise” of their religious faith. Breyer says that these two clauses are “often in tension” but express “complementary values”. Quoting previous Court decisions, Breyer imagines what motivated the amendment’s two religion clauses.

Together they attempt to chart a “course of constitutional neutrality” with respect to government and religion. They were written to help create an American Nation free of the religious conflict that had long plagued European nations with “governmentally established religion[s].” Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries.

“Conflict” is a bit of an understatement here. In England, the Anglican/Catholic/Puritan struggle dominated the 1600s, resulting in the beheading of Charles I, a long civil war, and the Glorious Revolution of 1688. On the Continent, the Thirty Years War killed at least 4.5 million people. The Founders knew this history and desperately wanted to avoid repeating it.

Previous Courts held that the tension between the two religion clauses created “play in the joints”. In other words, states had room to navigate between them. One state might choose to draw the line in a different place than another.

States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions.

Roberts started taking that freedom away when he wrote the majority opinion in the 2017 Trinity Lutheran case, where Missouri was forced to include religious schools in a grant program to make playgrounds safer. Breyer can live with that outcome (in 2017 he wrote a partial concurrence), but doesn’t think that decision forces this one.

Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.

It’s striking that in this case (as in the gun case above) it is Breyer and the liberals, not Roberts (or Thomas) and the conservatives, who are defending states rights.

We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.

The cases Roberts cites as precedents, Breyer says, don’t justify this shift from permission to requirement.

In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. It does not require Maine to spend its money in that way.

This particular decision may not affect many Americans. But Breyer sees clearly where Roberts is headed.

What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”

And doesn’t Roberts’ policy implicitly favor more popular religions?

Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.

After all, who but Christians will be able to find a market for religious schools in rural Maine? This is a problem I have had with the conservative view of “religious freedom” all along: In practice, it only gives rights to conservative Christians — or, completely by accident, to other religious groups who happen to agree with conservative Christians on a particular issue like abortion or homosexuality.

So it may be amusing to imagine how this ruling might someday be used to make Evangelical taxpayers support a Muslim madrassah, or some other school they would abhor. But I question whether such a thing will ever happen. This Court’s sectarian majority believes in special rights for Christians. It will find ways around extending those rights to anyone else.

Here’s how Sherry Kolb put it in “Are Religious Abortions Protected?“, where she examines the argument (raised in a recent lawsuit filed by a Florida synagogue) that a Jewish doctor may feel religiously obligated to perform an abortion in situations where a state has banned them.

Despite appearances to the contrary, this Court is not especially friendly to Free Exercise claims. … Its rulings instead reflect its friendliness to conservative Christianity and, accordingly, to Judaism and Islam where the ask is minimal or the traditions happen to be the same. Christians can violate the anti-discrimination laws for religious reasons because they are Christians. The sooner we come to understand that the Court is all about Christianity rather than some capacious vision of religious liberty for all, the sooner we will begin the process of finding solutions to our modern-day theocracy problem that do not ask the Court to behave with integrity or consistency.

The Monday Morning Teaser

It is unfortunate that the Supreme Court dropped its Dodds decision reversing Roe v Wade on Friday, because it understandably eclipsed a week that was already heavy with important developments.

Two of those developments were other radical Supreme Court decisions: one blowing a hole in the wall between Church and State, and the other tossing out a century-old New York gun law, while casting doubt on just about any other gun regulation. I’ve grouped those three decisions together in “Three Supreme Court decisions with long-term consequences”, which should be out shortly.

Two other news stories would have dominated most weeks. Congress passed (and Biden signed) the first significant new gun-control legislation since the Clinton years. It’s far from what Biden wanted or the country needs, but it is something in an era when we’re used to getting nothing.

And then there were two more January 6 hearings, one detailing the ways Trump pressured everyone from local election officials to state legislatures and secretaries of state to help him stay in power after he lost the election, and one focusing on his attempt to corrupt the Justice Department, and how close it came to succeeding. Both included dramatic testimony (like Georgia election worker Shaye Moss describing how her life was ruined after Trump targeted her by name with false accusations of election fraud) and stunning revelations (like the six Republican congressmen who asked Trump for pardons).

I’ll cover most of that in the weekly summary, but there is one short thing I decided to pull out into a second featured post: I’ve been hearing a lot of pessimism about what the 1-6 hearings are accomplishing, with the assumption that they’re having no effect because Trump’s cultists aren’t watching them. I think that’s backwards, and shows a misperception of how conservatives change their minds. I’ll try to get that out around 10 or 11 EDT. The weekly summary should be out by 1.

Lingering Dishonor

Tonight I say this to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain.

Rep. Liz Cheney

This week’s featured posts are “Will the Great Salt Lake stay great?” and “The hearings, week two“.

This week everybody was talking about the continuing 1-6 hearings

This was covered in the second featured post.

This week we saw that the Big Lie is alive and well, and screwing up current elections. New Mexico held a primary on June 7, but Otero County refused to certify results for the state to total up.

The all-Republican [county] commission had refused on Monday to certify the results — citing concerns about Dominion voting machines and questions about a handful of individual votes in this month’s primary.

Friday, the commission voted 2-1 to submit to a court order that they certify results. The one dissenting vote was from a commissioner who has been sentenced to 14 days jail time for trespassing on the Capitol grounds during the 1-6 riot.

Controversies over Dominion voting machines are perhaps the most thoroughly debunked of all Trump’s election-fraud lies. Not even Fox News and Newsmax make the claim any more. Hand recounts in numerous states have failed to find higher-than-normal discrepancies in final vote totals, ending the controversy for all people who live in the real world.

Republican Rep. James Comer promised an OAN interviewer that when Republicans get control of the House in 2023, they will take revenge by holding “Hunter Biden hearings“. The idea here seems to be that this will make Democrats sorry they investigated 1-6 and demonstrated Trump’s criminality.

Here’s what he doesn’t get: Democrats aren’t a personality cult the way Republicans are.

In particular, we aren’t dedicated to protecting each other from learning the truth about Joe Biden or his family. If it turns out that Hunter Biden really did commit crimes (which I don’t think has been established yet), by all means he should be investigated, prosecuted, convicted, and go to jail. I believe that would make his father sad, but keeping Joe Biden happy is not a high priority for me or for most Democrats, certainly not the way that keeping Donald Trump happy is a priority for Republicans.

and “both sides do it” distractions

Right-wing media and politicians like Marco Rubio have started calling for the Justice Department to take action against a pro-choice “terrorist” group, Jane’s Revenge. You can expect JR to become the new antifa. Night after night, Fox News will cast it as a violent left-wing conspiracy that the authorities supposedly ignore while targeting “patriotic” right-wing groups like the Proud Boys.

The problem with this framing is simple: So far there’s little indication that Jane’s Revenge is much more than a viral meme. (Similarly, antifa is much less than right-wing media makes it out to be. It appears to be a handful of local groups with no national coordination.) So if you graffiti some anti-choice institution (“You Do Not Have the Right to Determine How Others Live” painted on a Catholic Church, for example), your action will become part of a 50-incident list of “Attacks on Churches, Pro-Life Organizations, Property, and People Since the Dobbs Leak” that Rubio will tie to Jane’s Revenge. And as the meme catches on, you may even decide to sign your graffiti as “Jane’s Revenge”, or attach that name to a threatening letter you post online. But that doesn’t mean you belong to any group — or even that there is a group to belong to.

A small percentage of the “attacks” on Rubio’s list do involve real or attempted property damage, and those are crimes that should be investigated and punished like comparable property crimes, most of which never get federal attention. But I doubt that his list would impress anybody who has worked at an abortion clinic, where hostile graffiti is just another Tuesday, and people occasionally get killed. (My church suffered an “attack” a few years ago: Our “Black Lives Matter” sign was defaced, as were the signs of at least 50 other churches. We never heard from Rubio.)

None of this “left-wing terrorism” bears any resemblance to right-wing terrorism, which regularly kills people, or to the Proud Boys’ or Oath Keepers’ participation in Trump’s coup attempt.

Just last weekend, 31 members of Patriot Front were arrested on their way to violently disrupt a Pride event in Idaho. Reportedly, the 31 came from 11 states and only one was from Idaho. That’s what an interstate terrorist group looks like.

So far, Senator Rubio hasn’t written to Merrick Garland to complain about them.

and the Senate gun compromise

Last week a bipartisan group of senators announced they had compromised on a framework for legislation. But it started to come undone this week when they got down to writing a bill.

The major sticking points? Funding for red flag laws and what to do about the “boyfriend loophole.” Both issues present a number of thorny challenges for negotiators, but the “boyfriend loophole” specifically has been cited as a considerable roadblock.

Currently, you can’t buy guns if you’ve been convicted of domestic violence against a spouse, a live-in partner, or the mother of your child. Democrats want to extend that prohibition to less well defined dating relationships. Republicans agreed in principle, but defining the exact bounds of “boyfriend” is giving them heartburn. After all, violent men who like guns are pretty much the core of the Republican Party.

It’s had to argue, though, that extending the loophole wouldn’t have a big effect on mass shootings. Men who commit such crimes usually start out smaller, by abusing either animals or women who are in their power.

Mass killings of children get the most media attention, but apparently no one of any age is safe from the epidemic of gun violence. Thursday evening, a 70-year-old man went to a potluck dinner at an Episcopal church in Alabama and killed three even older diners before being hit with a chair by another man in his 70s.

If I had to choose the American denomination least likely to be either the victims or perpetrators of violence, I might well have picked the Episcopalians. Historically upscale and stereotypically “nice people” (sometimes to a fault), Episcopalians tend to be theologically and politically liberal but ritually conservative. They are closely related to the Church of England, whose niceness comedian Eddie Izzard lampooned in her “Cake or Death” routine, which seems a bit less funny today.

and Juneteenth

By the calendar it was yesterday (June 19); the federal day-off-work is today.

Juneteenth marks the day in 1865 when a Union general announced that the slaves of Texas were free. That makes it a bittersweet holiday, because the Emancipation Proclamation had taken effect on January 1, 1863, more than two years earlier. General Lee had surrendered at Appomattox more than two months before. And even after Juneteenth, the proclaimed “absolute equality of personal rights and rights of property between former masters and slaves” was a long time in coming. Some would say it still hasn’t arrived.

In short, Juneteenth reminds us that there’s a big difference between having rights on paper and having rights that the ruling institutions can or will enforce in practice.

but we’re not paying enough attention to environmental disasters in progress

That’s the topic of the first featured post, about the shrinking of the Great Salt Lake.

The other big recent environmental news story is about too much water rather than too little: the flooding of Yellowstone.

and you also might be interested in …

The Texas Republican Party went off the deep end this week, approving a platform

declaring that President Joe Biden “was not legitimately elected” and rebuking Sen. John Cornyn for taking part in bipartisan gun talks. They also voted on a platform that declares homosexuality “an abnormal lifestyle choice” and calls for Texas schoolchildren “to learn about the humanity of the preborn child.”

It also calls for repealing the 16th Amendment (which allows a national income tax), abolishing the Federal Reserve, and holding a referendum on whether Texas should secede from the Union.

Here’s hoping Governor Abbott doesn’t duck a debate with Beto O’Rourke, so Beto can ask him about his party’s platform point by point.

If you’re in my generation and want to feel old, meditate on this: Paul McCartney turned 80 this week. “When I’m 64” is but a distant memory for him now. Two days before the big day, he performed at Met Life Stadium in New Jersey, and was joined on stage by New Jersey icons Bruce Springsteen (a mere 72), and young whippersnapper Jon Bon Jovi (60).

French President Macron’s party lost its majority in the lower house of Parliament. It’s still the largest party, but will have to find allies to accomplish anything. France’s government may become as logjammed as the US.

and let’s close with something over the top

Apparently in Denmark, the only thing cooler than riding the bus is driving one.

The hearings, week two

Or “Why I’m not ready to make a hero out of Mike Pence”.

Monday was the second hearing [video, transcript], while the third hearing [video transcript] was Thursday. Two more hearings are scheduled tomorrow and Thursday at 1 p.m.

The daytime hearings have been fleshing out the case presented in the opening prime-time hearing on June 9th, which I covered last week.

Last Monday’s session focused on all the people within the Trump campaign and Trump administration who told Trump he had lost the 2020 election and debunked his claims of fraud. But Trump dismissed the views of Attorney General Bill Barr, his successor Jeff Rosen, campaign chair Bill Stepien, White House lawyer Eric Herschmann, Deputy Attorney General Richard Donoghue, and others as they refuted very specific claims of fraud — claims Trump would keep repeating.

Instead of accepting what his own experts (who christened themselves Team Normal) told him, Trump sought out less qualified people (Team Crazy) who would tell him what he wanted to hear, like Rudy Giuliani and Sidney Powell.

The hearing also surfaced a new possible criminal charge: fund-raising fraud. The people who kept contributing to Trump after the election were told their contributions would go into an “Official Election Defense Fund”.

[C]ommittee investigator Amanda Wick … disclosed that Trump aides Hanna Allred and Gary Coby said no fund technically existed. She also noted that most of the money went to Trump’s Save America PAC and that very little was used for challenging the election results.

So not only did Trump’s fund-raising pitches rely on lies about election fraud — giving Trump a financial incentive to keep lying — they also lied about where contributors’ money would go.

The third hearing centered on the plot to miscount electoral votes that was designed by lawyer John Eastman. As before, Trump’s advisors within the administration told him the plan was illegal and unworkable, but he sought out Eastman to be told that he could still hang onto power.

The plot centered on constructing slates of phony electors from the states where Biden’s win was clear but not overwhelming. Based on Trump’s false claims of fraud, the false electors would have their ballots delivered to Congress. On January 6, Eastman’s plan had Vice President Pence either accepting their votes as legitimate, or refusing to accept any votes from those states because their legitimacy was “contested”. Either would erase Biden’s Electoral College margin and re-elect Trump. Failing that, Pence could send this phony controversy back to the state legislature to be resolved. This would both delay Biden’s recognition as President-elect, and would shift pressure to Republican majorities in the legislatures to reverse the will of their states’ voters. (We might expect mini-January-6 riots in state capitols.)

Widely respected conservative Judge Michael Luttig testified that not only did this plan have “no basis in the Constitution or laws of the United States at all”, it constituted “a clear and present danger to American democracy”, one that continues as we move towards the 2024 election.

Fortunately, Mike Pence chose not to cooperate with this plan. Pence’s chief counsel Greg Jacobs testified at length about the pressure Trump and Eastman put on Pence, and described what could have happened as “a constitutional jump ball situation, political chaos in Washington, lawsuits, and who knows what happening in the streets”. When White House lawyer Eric Herschmann expressed a similar fear to Eastman — “You’re going to cause riots in the streets.” — he reported Eastman “said words to the effect of there has been violence in the history of our country, Eric, to protect the democracy or protect the republic.”

Pence came off well in Thursday’s hearing, looking like a modern-day Horatius-at-the-bridge defending American democracy against coup and chaos. And while I appreciate how hard it must have been to toss away the benefits he had earned by four years of complete subservience, I have a hard time seeing him as a hero.

I think Mike Pence should have won the 2021 Darth Vader Award for waiting until the last possible moment to do the right thing. Similar to Darth, if Mike had done the right thing sometime sooner, maybe that last possible moment would never have arisen. In particular, what if Pence had stated publicly, weeks in advance, that he did not have and would not try to exercise the power to discard electoral votes that had been certified by the states? What if he had announced that he had consulted with the attorney general and others within the Trump administration, and had determined that the Trump/Pence ticket had lost the election fair and square?

Maybe Trump’s cultists wouldn’t have arrived in DC on January 6 with the expectation that Biden’s election could still be reversed. Maybe the 1-6 violence would never have happened.

I interpret Pence’s drama as a microcosm of what the GOP spent four years doing: All through the Trump presidency, Republicans in his administration and in Congress had hoped that someone else would stop him before he destroyed American democracy. That’s why Pence kept temporizing, not committing to Eastman’s coup plan, but telling Trump he’d continue to study it. Maybe the whole thing would fall through for some other reason, and Pence would never have to stand up to Trump and Trump’s cult of personality.

Just about every major Republican — not just Pence, but Mitch McConnell, Kevin McCarthy, and many, many others — could have gone public before things got out of hand, but they decided not to. It was easier just to humor Trump and hope that his whole attempt to stay in office in spite of the voters would just run of steam somehow.

Mike Pence was the one who wound up with no one to pass the buck to. If he had gone along with Trump on January 6, then there would have been no orderly transfer of power, and Trump would either have been overthrown by violence or become de facto autocrat-for-life.

Pence isn’t a hero; he’s just the Republican who lost the game of hot potato.

Will the Great Salt Lake stay great?

If we can’t save one lake, how will we save the planet?

We all think we know why it’s so hard to motivate our fellow Americans to meet the threat of climate change:

  • The danger seems distant, as if we still had a lot of time to react.
  • The problem seems abstract: So what if statisticians claim the average day is a degree or two warmer than it would have been a few decades ago? Why is that such a big deal? Maybe the computer models are wrong and the projections of disaster are just scaremongering.
  • Such disasters as we’re already seeing — hurricanes, droughts, fires, heat waves — don’t come clearly marked “brought to you by climate change”. Similar things have happened in the past, so maybe these would have happened anyway.
  • Because climate change is global, it’s hard to connect our own actions to the outcome. If we make sacrifices, but the Chinese and Indians don’t, they’ll get an advantage on us and all the bad things will happen anyway. As Marco Rubio put it when he was running for president in 2015: “America is not a planet.

But what if we faced an environmental disaster where none of those factors came into play? Something entirely within our borders, where the changes were visible to the naked eye, and the looming catastrophe obvious. Something clearly connected to current policies, and addressable by changing those policies.

We’d be all over that, wouldn’t we?

Well, apparently not.

Not quite two weeks ago, the New York Times reported that a combination of climate change, over-population, and profligate water use is killing the Great Salt Lake.

Last summer, the water level in the Great Salt Lake reached its lowest point on record, and it’s likely to fall further this year. The lake’s surface area, which covered about 3,300 square miles in the late 1980s, has since shrunk to less than 1,000, according to the U.S. Geological Survey.

The salt content in the part of the lake closest to Salt Lake City used to fluctuate between 9-12%, according to Bonnie Baxter, a biology professor at Westminster College. But as the water in the lake drops, its salt content has increased. If it reaches 17% — something Baxter says will happen this summer — the algae in the water will struggle, threatening the brine shrimp that consume it.

Algae and brine shrimp are the bottom of a food chain. Migratory birds who rely on the lake as a resting spot in their otherwise perilous desert crossing would go next.

While the ecosystem hasn’t collapsed yet, Baxter said, “we’re at the precipice. It’s terrifying.”

Worse, the exposed former lake bed could soon endanger humans in nearby Salt Lake City:

The lake bed contains high levels of arsenic and as more of it becomes exposed, windstorms carry that arsenic into the lungs of nearby residents, who make up three-quarters of Utah’s population. …

The soil contains arsenic, antimony, copper, zirconium and other dangerous heavy metals, much of it residue from mining activity in the region. Most of the exposed soil is still protected by a hard crust. But as wind erodes the crust over time, those contaminants become airborne.

Part of the problem is climate change, with all the complicating factors I listed above. (More of the mountain snowpack is evaporating rather than melting to feed the rivers that feed the lake.) But another big part of it isn’t: Population growth is diverting water from the rivers before it can reach the lake.

So policy changes at the state and local levels could do a lot to mitigate the problem: Water rates could go up, and future development could be discouraged.

Of major U.S. cities, Salt Lake has among the lowest per-gallon water rates, according to a 2017 federal report. It also consumes more water for residential use than other desert cities — 96 gallons per person per day last year, compared with 78 in Tucson, Arizona, and 77 in Los Angeles. … Homes around Salt Lake boast lush, forest-green lawns, despite the drought. And not always by choice.

In the suburb of Bluffdale, when Elie El kessrwany stopped watering his lawn in response to the drought, his homeowners’ association threatened to fine him. “I was trying to do the right thing for my community,” he said.

State Rep. Robert Spendlove, a Republican, introduced a bill this year that would have blocked communities from requiring homeowners to maintain lawns. He said local governments lobbied against the bill, which failed.

In the state legislative session that ended in March, lawmakers approved other measures that start to address the crisis. They funded a study of water needs, made it easier to buy and sell water rights, and required cities and towns to include water in their long-term planning. But lawmakers rejected proposals that would have had an immediate impact, such as requiring water-efficient sinks and showers in new homes or increasing the price of water.

In short, the legislature did nothing that might ask for sacrifices from individual citizens. If Utahans are still asleep to the problem — even though they can go look at the shrinking lake for themselves — the state’s political leaders are afraid to wake them up.

But they’re bound to notice eventually. The NYT article compares the Great Salt Lake to the cautionary tale of Owens Lake in California, which dried up when water feeding it was diverted to Los Angeles early in the 20th century.

On what used to be the shore of what used to be Owens Lake is what’s left of the town of Keeler. When the lake still existed, Keeler was a boom town. Today it consists of an abandoned school, an abandoned train station, a long-closed general store, a post office that’s open from 10 a.m. to noon, and about 50 remaining residents who value their space, and have lots of it.

Like Paul Krugman, I was surprised the NYT article didn’t mention a much bigger disaster: the Aral Sea in Central Asia, which was once the fourth-largest inland body of water in the world. In the 1960s, the Soviet Union irrigated much of the surrounding area in an attempt to become a major cotton exporter. With so much water evaporating in fields rather than flowing into the sea, the Aral’s ecosystem collapsed.

The Aral Sea has seen the surface area decline by 90%, and had its volume decrease by 85%, an amount equal to Lake Erie and Lake Ontario combined. The sea level has dropped by over 30 m in many places, leaving fishing boats stranded 100 kilometers from any shore. What was once the bottom of the lake has become a new desert, abandoned fishing boats listing in the sand, scoured by toxic dust storms. Ramshackle towns perch on vanished shorelines, while the population languishes in poverty and high rates of cancer, tuberculosis, digestive disorders and anemia. It’s like a scene from a post-apocalyptic movie, yet it is all too depressingly real.

Krugman makes a even more depressing point about the Great Salt Lake:

what I found really scary about the report is what the lack of an effective response to the lake’s crisis says about our ability to respond to the larger, indeed existential, threat of climate change.

The factors that make it hard to marshal the will to fight climate change globally don’t apply here. The retreat of the Great Salt Lake is a visible local problem that could spiral into disaster in the very near future. Action to prevent that disaster could be taken locally, by restricting water usage and new development.

So this should be easy: A threatened region should be accepting modest sacrifices, some barely more than inconveniences, to avert a disaster just around the corner. But it doesn’t seem to be happening.

And if we can’t save the Great Salt Lake, what chance do we have of saving the planet?

A similar pattern is replicating across the West in the face of a multi-year drought.

Lake Mead, which was created in the 1930s when the Hoover Dam was built across the Colorado River, is currently lower than at any time in its history. Lake Powell, also on the Colorado, is currently so low that the Glen Canyon Dam’s electrical generation has been cut back.

A former marina on Lake Mead.

Again, climate change combined with rapid population growth is the problem, perhaps exacerbated by the illusion created by the 20th century, which was wetter than normal in most of the American West.

The West is where the rubber meets the road in terms of America confronting climate change. The environmental problems are local, visible, and immediate, and local solutions to those problems are available. If it’s not politically feasible to restrict water usage and curb development, the whole region is, as Grant Piper puts it, sleepwalking towards disaster.

The Monday Morning Teaser

This morning’s featured post will shift away from national politics and look at an environmental problem: the shrinking of the Great Salt Lake, which is expected to break records this summer and endanger a larger ecosystem. Longer-term, Salt Lake City could face arsenic storms as the wind picks up poisonous dust from the exposed lake bed.

That’s worth attention in its own right, but even more alarming is what it says about America’s unwillingness to deal with looming climate disasters: So far, state and local governments are barely doing anything to curb development or discourage water use. Unlike global climate change, the shrinking lake is immediate, local, and amenable to simple policy changes, if only the public could muster the will to tackle the problem. “if we can’t save the Great Salt Lake,” Paul Krugman asks, “what chance do we have of saving the planet?”

That post should appear before 10 EDT. The weekly summary has two more 1-6 committee hearings to cover, as well as Juneteenth, the faltering Senate gun compromise, and the right-wing media’s new both-sides-do-it distraction: Jane’s Revenge, a pro-choice “terrorist” group that so far is mostly imaginary. It’s the new antifa, and you can expect to hear it blamed for almost anything in the next few months.

We’ll all need something to laugh at after that, so I’ll close with a completely over-the-top Danish commercial for the bus service. The summary should post noonish.

Never Leave

Prior to these hearings, Republicans tried to claim that tonight was going to be a nothingburger. They were wrong. … It was such a juicy burger that Fox News knew that even their viewers would be tempted to take a bite. Which is why — and this is true — for the first hour of his show opposite the hearings, Tucker Carlson took no commercial breaks. [Neither did Sean Hannity.] Do you understand what that means? Fox News is willing to lose money to keep their viewers from flipping over and accidentally learning information. … But I’m not surprised. That’s the first rule of any cult: Never leave the compound.

Stephen Colbert

This week’s featured post is “The 1-6 hearings begin.

This week everybody was talking about the 1-6 hearing

If you only get one thing out of these hearings, it should be a response you can give to anybody on social media who thinks Trump really won the 2020 election: “Not even Ivanka believes that.”

I cover the first hearing in the featured post. The second hearing is going on as I write this, but I’m writing rather than watching, so I’ll have to cover it next week.

In the featured post I mentioned the WSJ’s opinion that Trump is morally but not criminally responsible for the 1-6 insurrection. Arkansas’ Republican Governor Asa Hutchinson is taking that line as well.

and Ukraine

Russian forces continue to advance slowly into eastern Ukraine, with high casualties on both sides. From the outside, it’s hard to tell who can keep this up longer.

and the pandemic

Two trends are fighting each other, so national case numbers are more-or-less flat, as a continuing decline in the Northeast is canceled out by increases in other regions. Hospitalizations are bending upwards, and deaths have been bouncing around in a 250-400 daily range for nearly two months.

and Senate compromises

Bipartisan committees of senators have reached compromises in two areas: mass shootings and revising the Electoral Count Act that Trump tried to abuse on 1-6.

The mass-shooting compromise gives credibility (probably more than they deserve) to Republican talking points about mental health and school vulnerability as causes. Vox summarizes:

The framework itself is heavy on mental health interventions, like setting aside funding for in-school mental health and support services, as well as telehealth services for individuals and families in mental health crisis. It also calls for a national expansion of community mental health services for children and families. … [A]lthough the framework is thin on details, it suggests investing in “programs to help institute safety measures in and around primary and secondary schools, support school violence prevention efforts and provide training to school personnel and students.”

But there is some gun control included as well. One carefully worded part of the framework:

Provides resources to states and tribes to create and administer laws that help ensure deadly weapons are kept out of the hands of individuals whom a court has determined to be a significant danger to themselves or others, consistent with state and federal due process and constitutional protections.

It also may close the “boyfriend loophole” in an existing law that prevents gun ownership by people under restraining orders for domestic violence, and also enhance background checks for gun purchasers under 21 years old.

Everything depends on the final wording, which remains to be worked out. Any of the ten Republicans involved in the negotiations could torpedo a bill, since all ten would be needed to break a filibuster.

According to Susan Collins, the group negotiating to revise the Electoral Count Act

has already drafted language that would make clear that the vice president’s role is ministerial in the process of counting Electoral College votes. The new language also raises the threshold for triggering a challenge to a state’s slate from one member in each chamber to 20% of the members in each body. There would be a majority vote for sustaining an objection.

and you also might be interested in …

The May consumer price index came in higher than expected: Inflation is running at 8.6%. Many economists had been theorizing that the peak inflation rate had been reached in March. But apparently not.

Obviously, this is an issue that drives down Biden’s approval numbers, but it’s not clear what he can do, what he should have done in the past, or what Republicans would do differently. Inflation would probably be lower if the American Rescue Plan hadn’t passed, but unemployment would be considerably higher. I doubt that would be a win for the country.

Inflation is happening around the world, and is worse in many other countries than it is here.

Some Republicans want to blame Build Back Better or even the Green New Deal for inflation, but it’s hard to see how that’s possible, since neither of them passed Congress.

In view of the attempted right-wing coup being exposed by the 1-6 Committee hearings, the ongoing rash of mass shootings caused by our insane gun culture, and the pandemic that has already killed a million Americans, it makes perfect sense that Republicans would want to focus on … kids going to drag shows.

Yep, that’s this week’s outrage, and public officials like Ron DeSantis are talking about siccing child protective services on parents who allow such a thing.

Because apparently seeing men dress like women will do some kind of permanent damage to a minor. I can’t quite imagine what, but probably my imagination has been stunted by my childhood trauma of seeing Flip Wilson’s Geraldine character, Corporal Klinger in MASH, and various Monty Python men-dressed-as-women skits. An earlier generation of American youth had to recover from seeing Milton Berle in a dress, as well as Tony Curtis and Jack Lemmon in Some Like It Hot.

It’s a miracle the Republic has survived.

A related outrage I forgot to mention last week: Right-thinking folks are boycotting Pizza Hut because the Hut’s Book-It program (to encourage children to read more) endorsed the book Big Wig, about a boy who creates a drag character. I personally favor local pizza places, so I’ve been unofficially boycotting the national chains for many years. But if you find yourself ready to flip a coin between chain pizzerias, you might want to give the Hut an edge.

A question to meditate on: Unless they go bare-chested at the beach, women dressing like men is hardly ever a big moral issue, and a kids’ book about a girl creating a hyper-masculine fantasy character wouldn’t be worth national attention. Why is that? Extra credit if your answer also accounts for the Hebrew Bible (a.k.a. Old Testament), which denounces gay men but doesn’t mention lesbians.

A guy was arrested Wednesday for plotting to assassinate Supreme Court Justice Brett Kavanaugh. It’s kind of a bizarre story: He called 911 on himself, and gave the police his description. He was arrested with multiple weapons. As motive, he cited both the Court’s pending decision to reverse Roe v Wade and the possibility that Kavanaugh might vote to loosen gun laws.

My IRL friend Abby Hafer has published an article fleshing out one of the strongest arguments for abortion rights: The law should not be able to commandeer parts of one person’s body, even to save the life of another person. In “Do pregnant women have fewer rights than the dead?” she points out that not even a corpse can be forced to donate a kidney or liver unless permission was granted before death.

Yet the anti-abortion lobby feels that [a pregnant woman] must donate her entire body, and not for her own good. She is being required to make this sacrifice of her own organs and tissues without her consent, in order to help someone else, even though our society does not require this at any other time, from any other kind of person.

Poland is an example of what can happen when anti-abortion radicals get their way. The NYT tells the story of Izabela Sajbor, who died of sepsis after her water broke prematurely, and doctors refused to intervene for fear of killing her fetus. Shortly before dying, Sajbor wrote something that echoes Abby’s point:

They cannot help as long as the fetus is alive thanks to the anti-abortion law. A woman is like an incubator.

and let’s close with something to make us all feel smarter by comparison

People under pressure tend to say stupid things — like when they’re on TV, a clock is running, and a game show host is looking at them expectantly.

The 1-6 hearings begin

[This article is being written before and possibly during the second hearing, which started at 10 a.m. I will cover that material, together with Wednesday’s and Thursday’s hearings, next week. As I’ve repeated many times, this is not a breaking-news blog.]

The committee kicked off its public hearings Thursday night [video transcript]. Remembering Bob Mueller’s testimony to Congress about his investigation, I had worried that these hearings would be dull and legalistic, or that they would rehash details that, however damning they might be, had already been widely discussed by people who were open to knowing what happened. Worst of all would have been one of those talkfests where each committee member gets five minutes to audition for national attention.

I should have had more faith. The other committee members were content to let Chair Bennie Thompson and leading Republican member Liz Cheney carry the ball, and they carried it well, particularly Cheney.

The first hour of the hearing consisted of Thompson and Cheney laying out the story that the rest of the evidence will nail down, backing up their claims with short videos of testimony that the public had not seen before — mostly from people in Trump’s inner circle: Bill Barr, Jason Miller, and even Ivanka. In the second hour the committee heard from live witnesses: Capitol Police officer Caroline Edwards (who was injured battling rioters at the barricades) and documentary film-maker Nick Quested (who spent the day following Proud Boys leader Henry Tarrio).

The key points in the Committee’s narrative are:

  • Trump knew that he had lost the election, and that his claims of fraud were baseless. Trump campaign advisor Jason Miller testified that (as the votes were still being counted) the campaign’s data analyst told Trump that he would not win. Trump lawyer Alex Cannon investigated the election-fraud claims, and already in November had reported to Mark Meadows that “we weren’t finding anything that would be sufficient to change the results in any of the key states”. To which Meadows replied: “So there’s no there there.” Attorney General Bill Barr said he told the President within weeks of the election that his charges of fraud were “bullshit”, and in particular that his claims about Dominion voting machines were “complete nonsense”. Ivanka was shown testifying that she believed Barr.
  • The attack on the Capitol was planned and organized. This wasn’t a protest that spontaneously spun out of control. In response to Trump’s tweet that 1-6 would “be wild”, the Proud Boys and Oath Keepers made plans to storm the Capitol. Before Trump even began his speech, about 200 Proud Boys had left his rally to scout the Capitol’s defenses. After Trump sent the crowd in their direction, they spearheaded breaching the barriers and leading the mob into the Capitol. (A key question going forward: Were these Trumpist militias just intuiting what their leader wanted, or does some figure — Roger Stone, say — connect them more directly with the White House’s plans?)
  • The rioters engaged in a bloody battle against law enforcement. If the videos of the attack didn’t make this obvious enough, Officer Edwards’ testimony brought the point home: “I saw friends with blood all over their faces. I was slipping in people’s blood. You know, I — I was catching people as they fell. I — you know, I was — it was carnage. It was chaos. I — I can’t — I can’t even describe what I saw. Never in my wildest dreams did I think that, as a police officer, as a law enforcement officer, I would find myself in the middle of a battle. You know, I — I’m trained to detain, you know, a couple of subjects and — and handle — you know, handle a crowd, but I — I’m not combat trained. And that day, it was just hours of hand-to-hand combat, hours of dealing with things that were way beyond any — any law enforcement officer has ever trained for.” This contrasts with Trump’s characterization of the mob as “loving” and Rep. Andrew Clyde’s comparing the rioters to tourists.
  • The riot was part of a larger plan to reverse the voters’ decision and return Trump to office for a second term. Cheney quoted conservative Judge Michael Luttig: “If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.” Trump pressured the Justice Department to spread his lies about election fraud. (“Just say the election was corrupt and leave the rest to me and the Republican Congressmen,” Trump told DoJ officials.) He pressured state election officials to commit fraud. (Cheney: “You will hear additional details about President Trump’s call to Georgia officials urging them to ‘find’ 11,780 votes – votes that did not exist, and his efforts to get states to rescind certified electoral slates without factual basis and contrary to law. You will hear new details about the Trump campaign and other Trump associates’ efforts to instruct Republican officials in multiple states to create intentionally false electoral slates, and transmit those slates to Congress, to the Vice President, and the National Archives, falsely certifying that Trump won states he actually lost.”) He pressured Vice President Pence to refuse to count electoral votes certified by the states, based on a theory he had been told was illegal.
  • Trump cheered the violence and refused to take action to stop it. Cheney: “Not only did President Trump refuse to tell the mob to leave the Capitol, he placed no call to any element of the U.S. government to instruct that the Capitol be defended.” General Milley testified that orders to get soldiers to the Capitol came from Vice President Pence, not from Trump. When told that the rioters were chanting “Hang Mike Pence”, Trump said Pence “deserves” it. (The source of that quote — which Trump denies — has still not been revealed.)
  • At least a few Republican members of Congress were complicit. This was the evening’s most tantalizing and least-fleshed-out point. Cheney floated this: “Representative Scott Perry, who is also involved in trying to get Clark appointed as Attorney General, has refused to testify here. As you will see, Representative Perry contacted the White House in the weeks after January 6th to seek a Presidential pardon. Multiple other Republican Congressmen also sought Presidential pardons for their roles in attempting to overturn the 2020 election.”

Conservative counter-programming. Almost as interesting as the hearing itself was how Trump and his minions dealt with it.

Fox News went to great lengths to shield their audience from any of the information the committee presented. The network not only refused to air the hearings, but went without commercial breaks for two whole hours, so that none of their viewers would be tempted to check out one of the news channels that was actually covering the news. Comedian Stephen Colbert nailed this:

Do you understand what that means? Fox News is willing to lose money to keep their viewers from flipping over and accidentally learning information. … But I’m not surprised. That’s the first rule of any cult: Never leave the compound.

Robert Reich estimates the lost revenue at around $400K. Chris Hayes describes the next level of technical detail: How Fox made sure none of the videos of Trumpist violence would make it through to their viewers, even as a picture-in-picture with Tucker Carlson talking over it.

Truth Social, Trump’s Twitter-clone, reportedly has been banning users who try to discuss the Committee’s evidence, making a mockery of the free-speech rhetoric it was founded on. This also should not be surprising: Reciprocity is not a fascist value. Fundamentally, fascism is an us-and-them worldview, where the fascists themselves have God-given rights, but their enemies do not.

Trump himself lashed out, calling the hearings a “witch hunt” and the committee members “hacks”. He attacked Bill Barr as “weak”, and said that Ivanka had “checked out” of looking at election claims. (Unaddressed question: Why shouldn’t Trump’s other supporters check out too?) He repeated his long-debunked claims of “an Election that was Rigged and Stolen”, and praised the January 6th rioters as representing “the greatest movement in the history of our Country to Make America Great Again”.

Direct criticism. If the don’t-look-behind-the-curtain defense failed, the next line was to smear the proceedings as “propaganda” or a “show trial” or “kangaroo court”, without addressing any of the evidence presented.

The Lawfare blog will be doing next-day podcasts where people call in questions about the hearings. The final question in Friday’s podcast was whether this criticism has merit. Host Benjamin Wittes answered this himself, and made a few key points:

  • First, the committee is not a court at all, in that no ruling will be made and no punishment will be assessed. So accusing it of being a kangaroo court conducting a show trial is a category error.
  • Beyond that is the question of whether the hearings are presenting accurate information, and as far as we can tell at this point, it is.
  • Finally, and harder to judge, is whether the committee is ignoring or omitting information that would argue against the points the committee is making. Wittes is not aware of any such information.

It’s worth pointing out that if any of the quoted witnesses feel that their testimony has been misrepresented, nothing stops them from saying so. Ivanka still has her Twitter account, for example, but hasn’t posted since May 30. Bill Barr and Mark Milley would have no trouble getting attention if they had comments to make.

Finally, it should go without saying that if what you are presenting is true, you have no responsibility to “balance” it by presenting lies. So Trump’s complaint that the Committee “refuses to talk of the Election Fraud and Irregularities that took place on a massive scale” has no merit. The evidence says not only that Trump’s claims about the election are false, but that they are conscious lies. He has known from the beginning that they are false.

Political impact. About 20 million Americans watched the hearings live, not counting those who watched it later online. Millions more have seen highlights or have heard summaries presented by journalists, comedians, or their friends. A few key facts have probably penetrated MAGA’s darkest sanctums: Not even Ivanka believes Trump’s stolen-election bullshit.

It remains to be seen whether the hearings will fade or pick up momentum. Today’s hearing undoubtedly will get a smaller audience, simply because it’s in the morning rather than prime time. But we’ll see what kind of buzz it generates.

The most effective Republican talking point against the hearings is not that the Committee’s case isn’t true, but that 1-6 is ancient history, and that Americans are much more worried about immediate issues like inflation (which the GOP has presented no plan for stopping).

The right answer to the put-the-insurrection-behind-us talking point is: You first. As long as top Republicans are still promoting the Big Lie, running for office based on it, and trying to get people in position to mount a better coup next time, 1-6 isn’t behind us. As long as Trump is the leading candidate for the 2024 Republican nomination, and 99% of the GOP’s elected officials are afraid to criticize him, 1-6 isn’t behind us.

Democrats have offered Republicans many opportunities to put 1-6 behind them: They could have voted to convict Trump in his second impeachment, and made him ineligible for future political office. They could have supported a bipartisan commission to investigate 1-6 and rallied behind its conclusions. They could still denounce Trump’s insurrection, denounce the Big Lie, and denounce Trump for continuing to promote it.

In short: They could take their party back from the fascist demagogue who has dominated it these last six years.

But they won’t unless public opinion forces them. That’s why these hearings are necessary.

Rumblings. The path of least resistance going forward is for the GOP to do to Trump what they did to their last failed president, George W. Bush. Bush left office in 2009, and by the 2010 election Tea Party candidates were running away from him almost as hard as they were running against Obama. In the early days of the Iraq invasion they had seen Bush as the next face on Mount Rushmore, but by 2010 the Tea Party line was that he had never really been a conservative.

Current Republicans could do something similar to Trump: claim that they are “constitutional conservatives” as opposed to the guy who tried to overthrow the Constitution after he lost the election. If they do, then the midterm elections can be about inflation or critical race theory or immigration or transgender-kids-in-your-daughter’s-locker-room or Biden’s-gonna-take-your-guns or pretty much whatever they want. If they don’t, then Trump and the Democrats will conspire to make the midterms about Trump, which is one of the few ways Republicans can blow this election.

Some conservatives grasp this logic. Fox News may be lining up behind Trump, but the rest of the Murdoch media empire is not so sure. The Wall Street Journal recognizes the basic facts of the Committee’s case, and only defends Trump against criminal liability.

The President spread falsehoods about the election. He invited supporters to Washington on Jan. 6, tweeting on Dec. 19 that it ‘will be wild!’ He riled up the crowd and urged it to march on the Capitol. After violence began, he dawdled instead of sending help. Mr. Trump bears responsibility for the mayhem. But inspiring followers to march is not the same as leading a criminal conspiracy.

Murdoch’s New York Post takes a more purely partisan angle. It shrugs off the broader threat to democracy, but wants to jettison Trump’s 2020 claims so that Republicans can focus on more effective issues and less tainted candidates.

Trump has become a prisoner of his own ego. He can’t admit his tweeting and narcissism turned off millions. He won’t stop insisting that 2020 was “stolen” even though he’s offered no proof that it’s true. … Trump can’t look past 2020. Let him remain there. Look forward! The 2024 field is rich.

Elected Republicans could follow that lead. They could choose to jump off the Trump Titanic before it sinks. But will they?