Solemn Mockery

The legislature of a State cannot annul the judgments, nor determine the jurisdiction, of the courts of the United States. … If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the Nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.

– Chief Justice John Marshall
United States v Peters (1809)
quoted by Chief Justice John Roberts on Friday
in Whole Women’s Health v Jackson

There is no featured post this week.

This week everybody was talking about threats to democracy

https://www.politico.com/cartoons/2021/12/03/2021-12-3-december-2021-000270?slide=1

The Biden administration hosted a virtual Summit for Democracy Friday and Saturday. The talks are available on the web site.

The event comes at a time when the US has been designated a “backsliding democracy” in the Global State of Democracy 2021 report by International IDEA.

The Global State of Democracy 2021 shows that more countries than ever are suffering from ‘democratic erosion’ (decline in democratic quality), including in established democracies. The number of countries undergoing ‘democratic backsliding’ (a more severe and deliberate kind of democratic erosion) has never been as high as in the last decade, and includes regional geopolitical and economic powers such as Brazil, India and the United States.

… Disputes about electoral outcomes are on the rise, including in established democracies. A historic turning point came in 2020–2021 when former President Donald Trump questioned the legitimacy of the 2020 election results in the United States. Baseless allegations of electoral fraud and related disinformation undermined fundamental trust in the electoral process, which culminated in the storming of the US Capitol building in January 2021.

That backsliding was highlighted in the week’s most important article “Trump’s Next Coup Has Already Begun” by Barton Gellman in Atlantic.

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

By way of foundation for all the rest, Trump and his party have convinced a dauntingly large number of Americans that the essential workings of democracy are corrupt, that made-up claims of fraud are true, that only cheating can thwart their victory at the polls, that tyranny has usurped their government, and that violence is a legitimate response.

Atlantic is hosting a virtual conversation about Gellman’s article today. A good companion to Gellman’s article is The Washington Post’s “18 Steps to a Democratic Breakdown“.


Meanwhile, we’re still learning more about Trump’s first coup attempt. Friday, Chris Hayes pulled together a narrative of Trump’s attempt to hold power after losing the 2020 election.

Both Hayes’ segment and Gellman’s article express a deep frustration at the story’s inability to grab public attention. Trump tried to overthrow American democracy and is setting up to try again. And yet, this doesn’t break through as a Watergate-level story that dominates the headlines day after day.

The response of each party is disappointing in its own way. By their complicity and silence, and sometimes by their active participation in Trump’s attempt to overthrow democracy, Republicans have let their party become the de facto party of autocracy. There are a few exceptions, but not many.

Because of their small majorities in Congress, Democrats have to be completely united to accomplish anything. So a few holdouts like Joe Manchin have prevented filibuster reform, which in turn has doomed any attempt to protect voting rights, limit gerrymandering, or put up any other resistance to the prospect of installing Trump (or some other MAGA Republican) against the will of the voters. The result is that, as a party, Democrats are not showing the urgency the situation requires.

CNN’s Zachary Wolf points out how this inability to act in the face of “existential threat” runs through multiple issues, including climate change.

https://www.ajc.com/opinion/mike-luckovich-blog/mike-luckovich-1210/THT5WBMSQNF43AQCDQYURQGWWE/

Among the documents Mark Meadows turned over to the House January 6 Committee (before he started stonewalling again) was a 36-slide Powerpoint presentation outlining how to overturn the 2020 election: “Election Fraud, Foreign Interference & Options for 6 Jan”, which was presented to some Trump-allied senators and representatives on January 4.

Senators and members of Congress should first be briefed about foreign interference, the PowerPoint said, at which point Trump could declare a national emergency, declare all electronic voting invalid, and ask Congress to agree on a constitutionally acceptable remedy.

The PowerPoint also outlined three options for then vice-president Mike Pence to abuse his largely ceremonial role at the joint session of Congress on 6 January, when Biden was to be certified president, and unilaterally return Trump to the White House.

Apparently the “foreign interference” in the presentation’s title was a bizarre and unsupported-by-evidence claim that “the Chinese systematically gained control over our election system.”


The DC Circuit Court of Appeals rejected former President Trump’s attempt to block a subpoena by the January 6 Committee for documents from his administration now held in the US Archives. The 68-page decision concluded that

former President Trump has failed to satisfy any of [the] criteria for preliminary injunctive relief.

Namely: a likelihood of success on the merits of his claim, irreparable harm if an injunction is not granted, and advancing the public interest.

In short, confronting former President Trump’s claim of privilege is the hydraulic constitutional force of not only a reasoned decision by the President that a limited release is in the interests of the United States, and the uniquely compelling need of Congress for this information, but also this court’s “duty of care to ensure that we not needlessly disturb ‘the compromises and working arrangements that those [Political] branches themselves have reached.’” …

President Trump bears the burden of at least showing some weighty interest in continued confidentiality that could be capable of tipping the scales back in his favor … He offers instead only a grab-bag of objections that simply assert without elaboration his superior assessment of Executive Branch interests, insists that Congress and the Committee have no legitimate legislative interest in an attack on the Capitol, and impugns the motives of President Biden and the House. That falls far short of meeting his burden and makes it impossible for this court to find any likelihood of success.

The main problem with the suit is that Trump claims to be suing to preserve the interests of the Presidency, and that’s just not his job any more. This isn’t the legislative vs. executive branch conflict he frames it as. It’s a private citizen asking the judicial branch to undo an agreement between the legislative and executive branches.

The case looks headed for the Supreme Court, but I think the best the conservative majority can do for Trump is stall. He hasn’t given them a credible way to rule in his favor.

and the pandemic

The post-Thanksgiving surge continues. New cases are averaging 119K per day, up 43% in two weeks. Deaths are averaging 1298 per day, up 32%. The Midwest and Northeast continue to be hardest hit, though Kentucky and West Virginia are still among the leaders in deaths and hospitalizations per capita.

Meanwhile, the first information about vaccines and the Omicron variant started coming out. British and Israeli studies tell similar stories: Two doses of vaccine don’t provide much protection against Omicron, but three do.

Meanwhile, the UK reported its first Omicron death.


Meanwhile, misinformation and conspiracy theories don’t have to wait for data.


Michael Osterholm from the University of Minnesota predicted in April, 2020 that the US could see 800K deaths in the next year and a half, which is startlingly close to what has happened. It’s always hard to tell how much luck is involved in a prediction like that, but you do have to wonder what he’s saying now.

Here’s what I found interesting:

While it’s early, I believe that Omicron is less virulent than Delta. The variant is being studied in South Africa, which is important because the virus has been in that country longer than others. And we do know that hospitalizations, serious illness and deaths are lagging indicators. Rates often rise two to three weeks after rises in case numbers start to occur. But as of today, the epidemiologic and clinical data on Omicron cases around the world support this virus is less lethal than Delta.

… When we first investigated the Covid-19 vaccines, we had to prioritize the assessment of the safety of the vaccines, which was done well. But we never really understood how to best use the vaccine in terms of number of doses, dose spacing, even the dose amount to maximize our immune response both for the short and long-term. … [W]e do need that third dose — and not as a luxury dose, but the third dose of a three-dose prime series. It should have been three doses all along.

… [W]e keep hearing about technology transfer and giving [low-income] countries the ability to make their own vaccines, and yet the expertise needed to make these vaccines is really at a premium. It’s very difficult to find people who know how to do this. So, it’s not enough to transfer technology to a low-income country if you don’t provide the expertise to make these vaccines. It’s not as simple as making chicken soup.


Ridiculous claims of executive privilege are not just for coup plotters. Trump administration trade representative and Covid-adviser Peter Navarro is refusing to comply with a subpoena from the House Select Subcommittee on the Coronavirus Crisis.

Navarro claims he is obeying a “direct order” from Private Citizen Donald Trump.

While he was in the government, Navarro was a font of misinformation about hydroxychloroquine and other snake-oil Covid cures, as well as calling Anthony Fauci the “father of the virus” based on a thinly supported conspiracy theory about a Wuhan lab.

and SB8

Supreme Court had another chance to rule on Texas’ vigilante-enforced anti-abortion law SB8.

The Supreme Court on Friday refused for a second time to block Texas Senate Bill 8 (SB8), which bans abortions as early as six weeks into pregnancy, in what may seem like a misleading 8-1 vote in favor of abortion providers’ attempts to challenge the law.

The reason the 8-1 vote is misleading stems from the fact that the Court left open “a single tenuous route to challenging” SB8 while not only keeping intact the most restrictive anti-abortion law in the US, but also foreclosing relief against Texas state court officials and its attorney general. As one academic commentator from Florida State University remarked, “If you read the win for abortion providers here as some kind of positive sign in the Dobbs case, I think you’re deluding yourself.”

I confess that I haven’t read the Court’s ruling, but I make the link available in case you want to.

The Court was not ruling on the case itself, but on various motions: to dismiss the case, or to grant in injunction against enforcing the SB8 until a final decision on its constitutionality. It denied the injunction, and narrowed the scope of who the pro-choice plaintiffs can sue.

If you consider Roe v Wade a binding precedent (which it is until the Court reverses it), SB8 is clearly unconstitutional. But SB8 is designed to evade the federal courts, and by a 5-4 vote, the Court is doing nothing about that.

This evisceration of the Supreme Court’s authority does not sit well with Chief Justice Roberts (hence the quote at the top), but the five radical conservative justices on the Court now leave him on the outside looking in.


California Governor Gavin Newsom plans to strike back. If conservative states can nullify federal court rulings, so can liberal states:

If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives. We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA.


A Texas judge is doing what the federal Supreme Court has refused to do: block the enforcement mechanism of SB8 because it violates the state constitution. The judge

ruled that the law unconstitutionally gave legal standing to people not injured, and was an “unlawful delegation of enforcement power to a private person.”

and commented:

In response to a direct question from this court, the attorneys responded that they are not aware of any comparable set of procedures in American law, ever, whether enacted for civil cases generally or for one special kind of lawsuit alone.


If you’re wondering what a religious takeover of government looks like, consider parts of India dominated by Hindu nationalists.

Citing complaints from Hindus as well as health concerns, local officials in Ahmedabad, Gujarat’s largest city, and at least four other cities in mid-November banned the sale and display of meat, fish and eggs on the street. As the mayor of one city, Rajkot, told the local news media: “Carts with nonvegetarian food can be seen everywhere in the city. The religious sentiments of the people are hurt by this.”

See? The religious nationalists are victims of those horrible egg-eaters and the vendors who serve them. They’re just fighting back.

and tornadoes

Tornadoes ripped through the center of the country late Friday and early Saturday, probably killing over 100 people, most of them in Kentucky.

Does global warming increase the number and force of tornadoes? Probably, but scientists are careful about stuff like that.

and you also might be interested in …

https://nickanderson.substack.com/p/the-sanctity-of-lifw

Weirdly, another Republican in Congress decided to celebrate the birthday of the Prince of Peace by posting a photo of her children with their military-style guns. Didn’t some guy once tell his followers to put their weapons away because “all who draw the sword will die by the sword”?

I am reminded of the John Pavlovitz column where he asks conservative Christians what Jesus they believe in, and concludes “It’s not any Jesus I know.”


As Fox News becomes the Tucker Carlson Channel, there is less and less place for anyone hoping to do real journalism. The network’s latest loss is Chris Wallace. He will join CNN’s new streaming service, CNN+.


Paul Krugman remarks on the strange disjunction between the economy and public opinion about the economy. Jobs are up, GDP is up, businesses are investing, retail sales are up, and the stock market is high. If you ask people how they are doing personally, they are upbeat. But if you ask them how the economy in general is doing, they say “not so good”. There’s some inflation (which is a global phenomenon), but does that really negate everything else?


Speaking of Mark Meadows (as I did above), I have never before heard an author refer to his own book as “fake news”. Trump objected to Meadows’ account of him testing positive for Covid and not telling the people around him, so Meadows backed down. Because the Truth is whatever Trump says it is.

Chris Christie, meanwhile, is pretty sure Trump gave him the Covid that sent him to the ICU.


There is now a unionized Starbucks. It’s in Buffalo.


Massachusetts Governor Charlie Baker, a popular Republican in a Democratic state, isn’t running for re-election or anything else next year.

Rather than try to rehabilitate the party he’s belonged to for decades, Baker chose to step aside. His move dovetails with the recent decisions of Chris Sununu of New Hampshire and Phil Scott of Vermont—two other Republicans who routinely poll among the most popular governors in the country—to spurn what could be competitive Senate races next year.

Baker-style Republicans are starting to recognize that they have no place in the Trump personality cult that the GOP has become. Why would they want to rise in a party where Trump can make you denounce your own book as “fake news”?


Derek Thompson in The Atlantic reflects on the decline in religious affiliation among Americans (especially young Americans), what caused it, and what it means going forward.

The main causes the article cites are (1) liberal disgust with the increasing identification between Christianity and conservative politics; and (2) America’s main enemy switching from the atheistic USSR to the hyper-religious Al Qaeda.

He also inverts the usual link between families and churches. It’s not that loss of religion undermines families, but that the loss of close family relationships undermines religion.

just as stable families make stable congregations, family instability can destabilize the Church. Divorced individuals, single parents, and children of divorce or single-parent households are all more likely to detach over time from their congregations.


A new product entered the market this week: eyedrops that temporarily fix age-related near-sightedness.

The new medicine takes effect in about 15 minutes, with one drop on each eye providing sharper vision for six to 10 hours, according to the company.

Hating eyedrops myself, I don’t see the win. But I guess other people do.


Gawker demonstrates the right way to publish an interview with someone who makes a lot of off-the-wall and unsupported claims. This interview is with RFK Jr., who was anti-vax before anti-vax was cool among the people who think it’s cool now. Kennedy’s words are published as he spoke them, but fact-checking and other needed contextual information is displayed just as prominently.

and let’s close with a different kind of merriment

If you’re about to OD on Christmas movies, maybe this collection of SNL Christmas-movie parodies will get you feeling like yourself again.

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Comments

  • dhkinsey  On December 13, 2021 at 11:23 am

    gov baker is part of the corporate crime problem faking concern for climate change by his actions- as obama did as well- the rot demands end to capitalism and creation of economic democracy

  • Josh  On December 13, 2021 at 12:58 pm

    Minor nitpick: the eyedrops referenced above treat “age-related blurry near vision”, that is, the inability to see things that are close to a person, leading to the need for reading glasses. However the text above uses the term “near-sightedness” which is the inability to see things that are far from a person – basically the opposite. (Source: I’m near-sighted and have been wearing glasses for it since I was a child.)

  • allisonchurnside  On December 13, 2021 at 4:34 pm

    Another point in family structure destabilizing congregational life: churches have traditionally relied on housewives / stay-at-home moms to do a lot of the work. More families with two working parents means fewer available volunteer hours as well as just less time for families to be engaged. Sundays with kids and two working parents mean catching up on chores and spending a little bit of time together.

  • ramseyman  On December 13, 2021 at 8:09 pm

    It seems to me that a reasonable interpretation of the Texas citizen-enforcer law is a bit different from Gov. Newsom’s apparent interpretation. “If states can shield their laws from review by federal courts,” then the federal system of state organization and the constitutional separation of powers are both finished. And it follows, if that is the case, that those who have always wanted autocracy in America have at last found an effective means of destroying republican democracy.

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