Category Archives: Articles

A reluctant defense of Bill Cassidy

No, he didn’t say that Black women’s deaths don’t count.


Here’s a pattern I complain about a lot: Some prominent Democrat says something that the conservative media paraphrases in a hostile way, making the statement sound much more ridiculous or offensive than it really was. That paraphrase then gets treated as if it were the actual quote, and a game of telephone proceeds from there, with each paraphrase more offensive (and further from reality) than the previous one.

Deplorables. That’s what happened, for example, when Hillary Clinton used the phrase “basket of deplorables” to describe the “racist, sexist, homophobic, xenophobic, Islamophobic” forces that had united under the Trump banner in 2016. Conservative media quickly turned that into a declaration that Trump supporters were deplorable in and of themselves, without reference to racism, sexism, homophobia, xenophobia, or Islamophobia.

The distortion started with the first news stories. The Washington Standard’s headline read: “Hillary Clinton: ‘Trump Supporters’ are a ‘Basket of Deplorables’

At a fundraiser on Friday, Democrat presidential candidate Hillary Clinton lashed out at her opponent GOP presidential candidate Donald Trump and his supporters. She called those supporting Trump a “basket of deplorables.”

The article included a Trump spokesman’s response:

What’s truly deplorable isn’t just that Hillary Clinton made an inexcusable mistake in front of wealthy donors and reporters happened to be around to catch it, it’s that Clinton revealed just how little she thinks of the hard-working men and women of America.

By now it’s a universal belief among Trumpists: Hillary called them deplorable, for no reason at all. What’s more, Hillary was just saying the quiet part out loud; Democrats in general look down on “the hard-working men and women of America”.

Inventing the internet. Something similar happened in 1999 when Al Gore replied to a question from Wolf Blitzer about what separated him from his primary rival Bill Bradley:

During my service in the United States Congress, I took the initiative in creating the Internet. I took the initiative in moving forward a whole range of initiatives that have proven to be important to our country’s economic growth and environmental protection, improvements in our educational system.

Before long, that quote morphed into Gore saying “I invented the internet.

Snopes summarized the context:

The vice president was not claiming that he “invented” the Internet in the sense of having thought up, designed, or implemented it, but rather asserting that he was one of the visionaries responsible for helping to bring it into being by fostering its development in an economic and legislative sense.

The claim that Gore was actually trying to take credit for the “invention” of the Internet was plainly just derisive political posturing that arose out of a close presidential campaign. If, for example, Dwight Eisenhower had said in the mid-1960s that he, while president, “took the initiative in creating the Interstate Highway System,” he would not have been the subject of dozens and dozens of editorials lampooning him for claiming he “invented” the concept of highways or implying that he personally went out and dug ditches across the country to help build the roadway. Everyone would have understood that Eisenhower meant he was a driving force behind the legislation that created the highway system, and this was the very same concept Al Gore was expressing about himself with interview remarks about the Internet.

But this also has become an article of faith on the Right: Gore made an absurd claim that undermines claims he has made on other issues, like climate change.

Democracy. Those are two of the most prominent examples, but lesser ones pop up on a regular basis. In the 2020 campaign, Fox played telephone with a Biden quote until eventually Lou Dobbs did this with it:

Joe Biden says the police are “the enemy.” Those are his words, “the enemy.”

But that was a paraphrase of a paraphrase, not “his words”. Conservatives have also spread doctored videos of Biden to either distort his views or make him look senile.

I hate stuff like that, not just because it treats public figures unfairly, but because it undermines democracy. The archetypal vision of democracy is of the public having a conversation that eventually arrives at some combination of compromise and consensus. Once such a conversation has established a public will, elected representatives can carry out that will.

But that whole vision comes apart if the public conversation centers on things that never happened, or devolves into flame wars started by insults that were never said.

That happens a lot these days, and for the most part I blame the Right. Some large part of their rhetoric is about “open borders”, when in fact we don’t have open borders and no Democrat is proposing that we should. Or about a mythical “stolen election”. Or public schools “grooming” children for pedophiles, or teaching White children to be ashamed of their race, when there is little reason to believe anyone is doing that.

Wouldn’t it be great if political campaigns could revolve around things that are real, rather than issues that have been invented to raise anger?

But if that’s what we want, we have to model it. In some arenas turnabout is fair play. But here, their abuse of democracy shouldn’t give us license to abuse it too. Personally, I’d like to save democracy, not win the ground where its corpse lies.

And that brings me to Bill Cassidy.

What did he say? Maybe you’ve seen the headlines: “Maternal death rate isn’t as bad if you don’t count Black women, GOP senator says” in Business Insider, “Louisiana Senator Bill Cassidy: Our Maternal Death Rates Are Only Bad If You Count Black Women” in Vanity Fair, and many others. This weekend my social-media feed was full of comments from people who took those articles’ hostile paraphrases as quotes and reacted from there.

But did he actually say those things? You don’t have to take anybody’s word for it; the whole virtual interview is on YouTube. It’s just under half an hour, but the abortion/maternal-health portion is in the first nine-and-a-half minutes.

It’s important to set the stage: Senator Cassidy, a doctor himself, is being interviewed by Politico reporter Sarah Owermohle under the auspices of Harvard’s Chan School of Public Health. This is not a campaign rally or other political event. Both Cassidy and Owermohle appear to be in their homes, but the virtual site of the conversation is Harvard.

Owermohle begins by asking about the leaked Supreme Court opinion reversing Roe, and Cassidy minimizes its impact, as if the 15-week ban at the center of the Dobbs case is the end of the story: Abortion will still be available up to that point, women will still be able to go to liberal states to get abortions, and abortion drugs will be available through the mail.

So fundamentally, the first month or two, not much would change, except for the location of where the abortion would take place.

Now, Cassidy surely knows that far stricter bans are being passed in states like Oklahoma and Tennessee, and that they will undoubtedly stand if Justice Alito’s opinion prevails. So he’s being disingenuous, but I have to admit that this is well within the bounds of normal political spin.

Owermohle then asks if Cassidy would support a federal ban on abortion, and Cassidy dodges. He says something that would argue against it:

I’m a federalist, and I think that states should be allowed to make decisions by the tenets of democracy.

But he doesn’t actually say he wouldn’t vote for a federal ban. Similarly, he argues that a national abortion ban would never get the 60 votes needed to overcome a Senate filibuster, but says nothing about the pressure Republicans would be under to scrap the filibuster if they had a majority. So this response is slippery, but again, within the normal bounds of American politics.

Owermohle asks about next steps for the pro-life movement after Roe is overturned, probably looking for Cassidy to say something about birth control, but instead Cassidy shifts the discussion to maternal health.

I truly think we need to support the mom when the child is in utero, and to support the mom afterwards, to give her everything she needs so that she can feel comfortable bringing the baby to term [and either giving the child up for adoption or raising it herself], to support that continuum of life from within the womb to without the womb.

To her credit, Owermohle doesn’t take Cassidy’s expression of concern for pregnant women at face value, and asks a polite but challenging follow-up. She notes that Louisiana “ranks very high on maternal deaths” and asks what needs to be done to improve that.

This is the section that leads to the headlines.

[In] Louisiana, about a third of our population is African American. African Americans have a higher incidence of maternal mortality. So if you correct our population for race, we’re not as much of an outlier as would otherwise appear.

Remember, Cassidy is a doctor who thinks he’s talking to the Harvard School of Public Health, so he is assuming a sophisticated audience. In that context, he’s not arguing to ignore the deaths of Black women, he’s reframing the problem: The right question, he is claiming, isn’t why so many new mothers die in Louisiana, it’s why so many new African American mothers die nationwide. That interpretation is clear if you continue the quote:

I say that not to minimize the issue, but to focus the issue as to where it [sh]ould be. For whatever reason, people of color have a higher incidence of maternal mortality.

Does he leave “whatever reason” as an unfathomable mystery, say “Sucks to be them”, and move on? No. He talks about remedies.

Now, there’s different things we can do about that. I have something called the Connected MOMS Act.

The target of this act is a pregnant woman dependent on public transit who lives 20 miles or more from her doctor. “So you’d like a better way to monitor her than asking her to come to the doctor’s office every two weeks.” The plan calls for remote blood-pressure monitoring and a few other innovations that could spot complications from a distance.

We also have the maternal health improvements grant, which again is to promote studies of this issue as well as to look at potential remedies, if you will, if there’s racial bias that is discovered in how health care is delivered.

So we’ve got a couple things that we’re floating out there trying to take care of this issue, because it is an issue for us in Louisiana as well as for folks nationwide.

I want to point out how far out on a limb he has gone, from the point of view of the far-right Republican base: Cassidy is allowing the possibility that studies could show racial bias in health care. I think it’s obvious that such bias exists and that honest studies will find it, but the Republican base voter doesn’t want to hear that. If such a possibility were raised in a school textbook, it would be “critical race theory”.

So is Cassidy saying: “Don’t bother to count Black women”? No, he’s not. I haven’t read the two pieces of legislation he’s talking about, so it’s possible they don’t do as much as he says. Or maybe the bills include other objectionable provisions that make their passage impossible or counterproductive. I can’t judge that. But at the very least he is paying lip service to the idea that Black lives do matter.

And that’s the exact opposite of what he’s being accused of.

White replacement is MAGA’s unified field theory

https://theconversation.com/we-cannot-deny-the-violence-of-white-supremacy-any-more-86139

Republicans used to unite around the interests of the rich. Now they unite around a conspiracy theory that has repeatedly inspired mass shootings.


This weekend, we learned all over again that ideas have consequences. When people believe terrible ideas, they do terrible things.

The idea this time is White Replacement Theory: A conspiracy of Jews and liberals is trying to “replace” Whites as the dominant race in America and Europe by bringing in as many non-white immigrants as possible, by encouraging Black people to breed quickly, by diluting the white race through interbreeding, and by depressing white birth rates. The ultimate goal is the extinction of the white race, an outcome also known as white genocide. [1]

If someone really believed such a theory, what might they do? We found out Saturday:

18-year-old Payton Gendron parked his car in front of the entrance to a Tops Supermarket in a Black neighborhood in Buffalo, New York. Exiting the car wearing metal armor and holding an assault rifle, he shot and killed a female employee in front of the store, and a man packing groceries into the trunk of his car. After entering the store, he murdered the store’s guard, and by the end of his killing spree, he had shot 13 people, killing 10 of them.

Eleven of the people he shot were Black, and two were white. As the manifesto he left behind makes clear, this was fully intentional. The first listed goal in his manifesto was to “kill as many blacks as possible”.

Gendron lives in rural New York state, but (according to the manifesto he posted online) drove three hours to find a zip code with a large black population. So he wasn’t seeking revenge against particular Black people that he blamed for his real or imagined problems. He was striking a blow for the white race.

Surely now people will see … Sunday, Pete Buttigieg tweeted:

It should not be hard, especially today, for every elected official and media personality in America—left, right, and center—to unequivocally condemn white nationalism, “replacement theory,” and all that comes with it.

That might seem like a small thing to ask. After all, the Buffalo shooting feels like the kind of horrifying crime that should scare everybody straight. Sure, a news-channel entertainer like Tucker Carlson might pimp WRT to juice his ratings, a politician like Donald Trump might motivate his base by hyperbolically describing immigration as an “invasion“, and countless ignorant folks on social media might pass on these ideas to justify the racism they’ve carried all their lives. But Payton Gendron has shown us that this isn’t a game. When crazy ideas are thrown around loosely, crazy people latch onto them and do terrible things. Surely everyone will realize that now, and everything will change.

That feeling should last for at least another day or two. Enjoy it.

Because we’ve been here before, and nothing changed. We were here when Dylann Roof, 21, killed nine Black Christians during a Bible study class at the Mother Emmanuel Church in Charleston (a city he also picked because of the large number of Black people living there). And when Patrick Crusius, also 21, drove from his Dallas suburb to a WalMart in El Paso, where he tried to shoot as many Mexicans as possible; he ended up murdering 23 people of various races and nationalities and injuring 23 more. John Earnest,19, hoped to kill as many Jews as possible in Poway, California, but he wasn’t very good at it; he only murdered one and wounded three others before his gun jammed. Robert Bowers, in his 40s, also went after Jews, killing 11 worshipers at the Tree of Life synagogue in Pittsburgh.

Those were all White Replacement Theory massacres. We know because the killers were only too happy to explain their actions. Posting a manifesto has become a standard part of a WRT massacre.

There have been WRT massacres in other countries as well. In New Zealand Brenton Tarrant attacked two mosques, killing 51 people. In Norway Anders Breivik’s murder spree was at the youth camp of Norway’s Labor Party; he killed 77 people in all, most of them White teens who were growing up liberal.

https://www.nytimes.com/2022/05/15/us/replacement-theory-shooting-tucker-carlson.html

If conservative promoters of WRT were going to be scared straight, it would have happened by now. It might have happened after Charlottesville, when only Heather Heyer died, but the nation saw the spectacle of violent white supremacists marching down the streets chanting “Jews will not replace us.

Remember? Then-president Trump responded by telling us that there were very fine people on both sides.

Nudges and dog whistles. Elected Republicans and Fox News hosts never explicitly tell anyone to go kill Blacks or Hispanics or Jews. But they do regularly say things that, if taken seriously, would logically result in race massacres. Why, for example, did Patrick Crusius take military weaponry to the biggest city on the US/Mexican border? Because he believed his country was being “invaded” by Mexicans, just as President Trump was saying.

When an army of foreigners invades your country, what can a heroic young man do other than go to the border and kill them? That’s what Ukrainians are doing now, and we all praise them for it.

The nudges these young men get from high-profile Republicans rarely mention race explicitly, but the meaning is not hard to decode.

In just the past year, Republican luminaries like Newt Gingrich, the former House speaker and Georgia congressman, and Elise Stefanik, the center-right New York congresswoman turned Trump acolyte (and third-ranking House Republican), have echoed replacement theory. Appearing on Fox, Mr. Gingrich declared that leftists were attempting to “drown” out “classic Americans.”

Would it surprise you to discover that some interpret “classic Americans” as “White people”?

Similarly, Tucker Carlson seldom talks about white and black in antagonistic terms. Instead, he looks into the camera and says “you” and “them”, leaving those terms open for his almost-entirely-white audience to interpret as they see fit. [2] But occasionally he almost comes right out with it.

He was more explicit in a video posted on Fox News’s YouTube account in September. Carlson said President Biden was encouraging immigration “to change the racial mix of the country, … to reduce the political power of people whose ancestors lived here, and dramatically increase the proportion of Americans newly arrived from the Third World.”

His Fox News colleague Laura Ingraham

told viewers in 2018 that Democrats “want to replace you, the American voters, with newly amnestied citizens and an ever-increasing number of chain migrants.” During a monologue on her program last year, she called immigration an “insurrection [that] seeks to overthrow everything we love about America by defaming it, silencing it, and even prosecuting it.

In her ads, Rep. Stefanik repeats the “insurrection” theme.

Radical Democrats are planning their most aggressive move yet: a PERMANENT ELECTION INSURRECTION. Their plan to grant amnesty to 11 MILLION illegal immigrants will overthrow our current electorate and create a permanent liberal majority in Washington.

She is no doubt aware that false conspiracy theories on the internet claim millions of illegal immigrants are already voting. By describing a path to citizenship (which doesn’t yet exist and would take years to walk) as an “INSURRECTION”, she justifies violence, like the violent attempt to keep President Trump in power after the voters rejected him in 2020.

Again, what would a heroic young White man logically do if he bought what Stefanik is selling? Someone is plotting an “insurrection” to “overthrow” his people. Is registering to vote or sending in $20 really an adequate response to that challenge?

The underground root system. Coincidentally, I was already planning to write something about WRT before Saturday, because this week it had shown up in an odd place: the Senate debate over codifying abortion rights through legislation. Republican Senator Steve Daines from Montana made a somewhat curious argument against that bill:

Why do we have laws in place that protect the eggs of a sea turtle or the eggs of eagles? Because when you destroy an egg, you’re killing a pre-born baby sea turtle or a pre-born baby eagle. Yet when it comes to a pre-born human baby rather than a sea turtle, that baby will be stripped of all protections in all 50 states under the Democrats’ bill we will be voting on tomorrow.

Most of the commenters on my social media feeds were mystified: What do sea turtles and eagles have to do with anything? Daines seemed to be talking in wild non sequiturs — unless you could fill in his unstated connection.

White replacement is the Rosetta Stone here: If laws protect sea turtle eggs and eagle eggs (I haven’t checked whether Daines was making that up), it’s because those species are endangered. You know what else is endangered? The white race, because White women are failing to reproduce at replacement rate. That is, in fact, why American women’s rights need to be taken away: because they’re not doing their primary job. They’re aborting their fetuses rather than producing the healthy White babies the race needs to avoid extinction.

Abortion isn’t the only issue with a hidden connection to WRT, as Gendron spelled out in his manifesto.

Gendron also argues that Jews are behind the movement for transgender inclusivity, supposedly sponsoring transgender summer camps for “Scandinavian style whites”.

Likewise, accepting same-sex relationships lowers the birth rate of Gingrich’s “classic Americans”. And then there’s the demoralizing effect of critical race theory.

The section ends by blaming Jews for creating “infighting” between people and races. The example Gendron’s manifesto provides is that “Jews are spreading ideas such as Critical Race Theory and white shame/guilt to brainwash Whites into hating themselves and their people”.

From the outside, the issues that motivate the MAGA wing of the GOP seem like an incoherent mess. But white replacement is an underground root system that connects them all.

What’s more, WRT explains the intensity of the MAGA movement, which otherwise is also a mystery. How can a bland figure like Joe Biden incite the kind of hatred and panic we’ve seen? Why would the prospect of a Biden administration be so scary that people styling themselves as “patriots” would invade the Capitol and threaten to hang the vice president rather than permit an orderly transfer of power?

And no matter how many revelations come out about the crimes of the Trump administration and the threat to democracy it posed, why are only a handful of Republicans ready to make a clean break with him?

Because the perceived alternative is racial extinction. Otherwise it makes no sense.

Historically, American political parties have gone into the wilderness for a period of time after a disastrous administration. That’s where the GOP should be post-Trump, but it is being held together by white anxiety about the demographic trends. WRT channels that anxiety into positions on issues and energy for campaigns. And that’s why Republicans can’t walk away from it, even though it regularly and predictably leads to race massacres.



[1] I refuse to go down the rabbit hole of arguing that this is false. I’ll leave that to Farhad Manjoo and Chris Hayes. I will point out one thing: No matter how lily-white you may appear to be today, chances are your people met exactly the same kind of suspicion and hostility when they came to America. My people, the Germans, started arriving in large numbers in the 1700s, and Ben Franklin worried that we were so different we would never assimilate into the Pennsylvania colony. Hence the origin of the Pennsylvania Dutch (i.e., “Deutsch”).

[2] More than a year ago, Charles Blow pointed out something Carlson skips over:

[R]evealingly, he is admitting that Republicans do not and will not appeal to new citizens who are immigrants.

There’s no racial essence that predestines groups of people to vote a certain way. Black voters, for example, were loyal Republicans until FDR started to win them over in the 1930s. In 1956, Dwight Eisenhower still got nearly 40% of the Black vote, compared to the 8% Trump got in 2016.

If Republicans would abandon race-baiting and try to win over immigrants of all races and ethnicities, they might succeed. Demography is not destiny.

Who’s to blame for overturning Roe?

https://www.timesfreepress.com/cartoons/2022/may/07/overturned/5402/

There’s plenty of blame to go around.


The two featured posts today look at the leaked Alito opinion overturning Roe v Wade through two very different lenses. The other post goes through the text of the opinion and examines its claims and arguments. This one considers the question: How did we get here?

In particular, whose fault is it that women in about half the states are going to lose their right to bodily autonomy, and their ability to plan their lives?

Let’s start with those most directly responsible.

Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. Or, as Stephen Colbert described them: “four old dudes and a woman who thinks The Handmaid’s Tale is a rom-com”.

Sometimes when we start assessing secondary blame, we lose sight of the primary blame. (Yeah, you shouldn’t have left your keys in the ignition, but the main reason your car got stolen was that some thief stole it.) Let’s not do that here: Roe is being overturned because five Supreme Court justices are putting their personal religious opinions above their duty to respect established precedents.

Now, as Justice Kavanaugh rationalized during the oral arguments, it’s not unheard of to reverse a precedent, and reversals have been some of the Court’s best decisions.

But a reversal is typically done after the Court has tried and failed to make the precedent work. That’s what happened, for example, when Brown v Board of Education (1954) reversed the “separate but equal” doctrine of Plessy v Ferguson (1893). In a series of cases from 1938 to 1950, the Court ordered students admitted to previously segregated white schools because the separate educational path provided for Black students was not really equal. In Brown, the Court drew a conclusion from that experience: Separate-but-equal schools were unworkable, because states with segregated schools would never provide a truly equal education to Black students.

But (in spite of what Alito claims, which I discussed in the other post) nothing about Roe and Casey has proven to be unworkable. The only major thing that has changed since Roe was decided in 1973 and upheld in 1992 is the composition of the Court. Alito, Barrett, Gorsuch, Kavanaugh, and Thomas are overturning Roe because they want to.

What’s more, they were all deceptive about this in their confirmation hearings. It’s arguable that they did not “lie”, depending on how tightly you define that word. (Thomas, I would argue, clearly did lie, though his lie may not be provable. It is simply unbelievable that, even though he was in law school when Roe was decided, he never participated in a discussion about it.) When asked about their approach to the Roe precedent, all five gave lawyerly answers that, in retrospect, were designed to deceive. If they could be cross-examined somewhere about their statements (which they can’t be, short of an impeachment hearing), all would have to say something similar to Bill Clinton’s “It depends on what the definition of ‘is’ is.”

And we already knew that Brett Kavanaugh lied repeatedly during his confirmation.

It is ironic, in my opinion, that these five deceivers are now trying to claim the moral high ground. They do not deserve it.

Donald Trump. It isn’t just that Trump appointed Gorsuch, Kavanaugh, and Barrett. It’s that he turned the Court over to the anti-abortion Federalist Society. Judges up and down the court system were selected by Leonard Leo, and rubber-stamped by Trump

Mitch McConnell. The reason Trump got to appoint three justices in four years is that McConnell played shenanigans in the Senate.

When Antonin Scalia died 11 months before the end of President Obama’s term, Obama nominated Merrick Garland to the Court. This was in no way a radical choice: Garland was already the chief judge on the most powerful appeals court in the country; he had been confirmed for that job by 73 senators; he was widely regarded as a moderate; and at the age of 63, he would probably only hold the seat for about 20 years, rather than 30 or 40.

In short: Obama was bending over backwards to be reasonable.

McConnell knew he could not present a valid reason not to confirm Garland, so he simply refused to hold hearings or bring the nomination to a vote, which is the process the Constitution calls for. The reason he gave was that an election was coming up, and the American people should have a chance to weigh in on this decision. (They did: Hillary Clinton got millions more votes than Donald Trump, but Trump got to make the appointment, who turned out to be Neil Gorsuch.)

McConnell also pushed Brett Kavanaugh’s nomination, and rubber-stamped the sham investigation of the sexual assault charge against him. When Ruth Bader Ginsburg died two months before the 2020 election, McConnell completely reversed his 2016 rhetoric about giving the American people a voice, and rammed Amy Coney Barrett’s nomination through in record time to give Trump his third justice.

https://www.reformaustin.org/political-cartoons/mitch-mcconnell/

The anti-democratic structure of the Senate. If the Senate were a democratic institution, Mitch would never have been majority leader to begin with, because the GOP would not have achieved a Senate majority any time in the last 24 years.

Here’s how that works: Every state gets two senators, no matter how many people it has. So Wyoming gets one senator for every 140,000 registered voters, while California gets one for every 11 million registered voters. In other words, it takes about 70 California voters have as much influence on the Senate as one Wyoming voter.

Sounds fair, right?

But you might be thinking: “Sure, blue California is under-represented compared to red Wyoming, but red Texas is also under-represented compared to blue Vermont. So maybe it all washes out.”

It doesn’t wash out. If you run the numbers, the last time Republican senators got more votes (over a complete 6-year Senate election cycle) than Democratic senators was 1994-1998. But in the 24 years since 1998, Republicans have held a Senate majority for 12 years: half the time.

In 2016, for example, when Mitch McConnell was using his Republican “majority” to keep President Obama from appointing Merrick Garland, sitting Democratic senators had gotten 50.7% of the total six-year Senate vote, compared to the Republicans’ 44.1%.

In a democratic country, Mitch wouldn’t have been majority leader at all, and Merrick Garland would be on the Court instead of Neil Gorsuch.

Similarly, during the Trump and Bush years, a democratic Senate would have had a Democratic majority. Bush probably could have gotten Alito and Roberts through anyway, because in those rose-colored days senators were not as partisan about the Court. (Alito was approved 58-42, and Roberts 78-22.) But Gorsuch, Kavanaugh, and Barrett would not have been confirmed.

Next, you might be wondering how we got such a skewed Senate. Historical accident, right?

No. Republicans in the late 1800s intentionally packed the Senate by admitting new states with tiny populations. As historian Heather Cox Richardson explained to Bill Moyers:

After 1888, when we get the installment of Benjamin Harrison in the White House, he loses the popular vote by about 100,000 votes. But he’s installed thanks to the Electoral College. The Republicans under Harrison between 1889 and 1890, they let in six new states in 12 months. That was the largest acquisition of new states in American history since the original 13 and it’s never been matched again. They let in North Dakota, South Dakota, Montana, Washington, and then Idaho and Wyoming to go ahead and make sure that they would continue to control the Senate, and the Electoral College. And they’re not hiding this. They actually go onto their media which is their equivalent of the Fox News channel at the time and say, by letting in these states, we’re going to hold onto the Senate for all time and we’re going to make sure we hold onto the White House for all time.

So if you’ve ever wondered why one Dakota wasn’t enough, that’s the reason: Republicans were packing the Senate. The Senate remains skewed in their favor to this day.

It’s almost impossible to unmake states, and hard to imagine passing a constitutional amendment to give larger states more senators, so the easiest way to change the Senate to better reflect the voting public would be to grant statehood to Puerto Rico and D.C., which presumably would elect four Democrats to the Senate. (If Democrats wanted to imitate Republicans, they could give statehood to East and West Puerto Rico, each of which could have a population roughly equal to the two Dakotas put together.) That won’t happen, McConnell says, because eliminating the Senate’s Republican bias would be “full-bore socialism“.

Also, admitting Puerto Rico and D.C. would let a lot of Hispanics and Blacks cast meaningful votes, so that’s a non-starter.

https://claytoonz.com/2022/05/03/goodbye-to-womens-rights/

The Electoral College. Like Benjamin Harrison, Donald Trump was never elected by the American people; he was installed by the Electoral College. In 2016, he got 46% of the vote, almost 3 million votes less than Hillary Clinton’s 48%. But his 46% produced 304 electoral votes to Clinton’s 227.

A less extreme miscarriage of democracy happened in 2000. That election has often been described as “close”, but it really wasn’t that close: Al Gore got half a million more votes than George W. Bush, so there was no doubt who the People chose. But after Florida was adjudicated in his favor (the vote in Florida really was close), Bush’s fewer votes turned into a 271-266 Electoral College win. (Sixteen of those electoral votes come from the aforementioned Montana, Idaho, Wyoming, and the two Dakotas. If they were all one state, it would have 5 million people, or 9 electoral votes; Bush loses.) Bush went on to appoint Justice Alito and Chief Justice Roberts.

Minority-vote presidents aren’t an accident; that’s what the Electoral College was designed to do: make some Americans’ votes count more than others. So in 2016, a few thousand voters in Wisconsin, Michigan, and Pennsylvania overruled much larger majorities in states like California, New York, and Illinois. If you’re a Californian, your vote just doesn’t matter as much as a purple-state vote. Sucks to be you.

Why did the Founders curse us with this unjust system? In a word: slavery. Votes in slave states were supposed to count more than votes in free states.

In 1787, the slave states wanted federal power comparable to their full populations (including slaves), but for obvious reasons they didn’t want to give the vote to slaves (or women, or men who didn’t own enough property). In school, most of us learned about one result of this desire to wield power in the name of people whose rights you totally deny: the 3/5ths Compromise. In setting the number of representatives a slave state got in Congress, its slave population would be included, but at a 40% discount.

That settled the House. The Senate was already undemocratic, so no problem there. But that left the presidency: If presidents were elected by the People, states that let more people vote would have more influence on the outcome.

Can’t have that, so the Electoral College was born. Each state got one electoral vote for each senator or congressman. So no matter how few people a state let vote, its influence on the presidency was guaranteed.

As Shakespeare had Marc Antony say: “The evil that men do lives after them.” Slavery ended with the 13th Amendment in 1865, but the blatant injustice of the Electoral College lives on. Women can thank it for the loss of their bodily autonomy.

https://ifunny.co/picture/evangelical-christians-actual-aclump-of-children-cells-gedxH7mc8

Theocrats. There are people who honestly believe that an ovum acquires a complete human soul the instant it bonds with a sperm. That sounds nutty to me (and it’s completely non-Biblical, so don’t tell me it’s the “Christian” position). But your religion is your own; it doesn’t have to make sense to me.

Where I lose patience is the point where people decide that their theological speculations give them the right to interfere in other people’s lives. You can believe whatever you want about fetuses and souls and abortion. But if you’re not the pregnant woman, what happens to the pregnancy is not your decision. And if no pregnant woman is asking for your advice, your opinion doesn’t matter.

The gullibility of purportedly pro-choice senators. Susan Collins isn’t the only one, but she is definitely on the poster.

My favorite Susan Collins joke describes how she gets lunch in the Senate cafeteria: She studies the menu for half an hour, and then orders the same thing as Mitch McConnell.

That’s pretty literally what happened during the Kavanaugh confirmation. Collins was one of the last senators to commit to Kavanaugh, who was confirmed 50-48. (Collins and Democrat Joe Manchin were the deciding votes.) For weeks, her agonizing decision process had us all speculating about what she would do. In the end, though, after all that dithering, she voted with Mitch McConnell, just as she had on the deficit-busting billionaire-boosting Trump tax cut, and as she did on Trump’s first impeachment. (She said Trump had learned “a pretty big lesson” from being impeached, and predicted that “he will be much more cautious in the future”. She voted to convict on his second impeachment, and says she’s “very unlikely” to support him in the 2024 Republican primaries. But in the general election? She leaves it open. Maybe failing to overthrow democracy on 1-6 taught him something.)

During her speech advocating Kavanaugh’s confirmation, Collins recounted her conversations with the nominee.

Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold v. Connecticut, a case that struck down a law banning the use and sale of contraceptives. Griswold established the legal foundation that led to Roe eight years later. In describing Griswold as “settled law,” Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today. Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as “precedent on precedent.” When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said “no.”

Kavanaugh had obviously lied numerous times during is confirmation hearings, but Collins took his affirmations of Roe’s status at face value. Now she describes Kavanaugh’s apparent vote to overturn Roe as “completely inconsistent” with what he told her, but she accepts no responsibility for being such a stooge.

https://www.reddit.com/r/PoliticalHumor/comments/68x91p/but_her_emails/

Pro-choice voters who refused to vote for Hillary Clinton. Who could have foreseen that electing Donald Trump might risk ending abortion rights? Well, everyone, actually. This is from an AP article written in May, 2016:

Scalia’s death was a shock, but the next few years are almost certain to produce more vacancies. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy turns 80 in July and Justice Stephen Breyer will be 78 before the end of the summer. A Trump nominee in any of those seats would cement conservative domination of the court for years, if not decades. By contrast, a victory by the Democrats in November probably would lead to the most liberal Supreme Court in a half-century. …

Advocates on both sides of the abortion debate were quick to react in ways that pointed to the importance of the presidential election. “Donald Trump’s list of potential Supreme Court nominees are a woman’s worst nightmare. Their records reveal a lineup of individuals who would likely overturn Roe v. Wade if given the chance, gutting what’s left of abortion access in this country and heaping punishment on women,” said Ilyse Hogue, president of NARAL Pro-Choice America. On the other side of the issue, Susan B. Anthony List President Marjorie Dannenfelser said Trump’s list was especially strong and stood in contrast to judges Democratic front-runner Hillary Clinton would choose. “There is no question Clinton would only nominate judges who stand in lock-step with the abortion lobby and would strike down even the most modest abortion limits,” Dannenfelser said.

But here’s what Bernie-supporter H. A. Goodman was writing in November, 2015 in a Salon article “Hillary Clinton is on wrong side of everything: Stop telling me I have to vote for her because of the Supreme Court“:

Ruth Bader Ginsburg is fine and the New York Times writes that she has “no interest in retiring.” Justice Scalia isn’t stepping down from the U.S. Supreme Court soon and will only contemplate retirement when he “can’t do the job well.” Anthony Kennedy is in “no rush” to leave the Supreme Court. Justice Breyer has no plans to step down but will “eventually” retire one day.

The paranoid legions, frightful of voting their conscience and actually upholding our democracy, can rest assured that all four Supreme Court justices mentioned are still capable of lasting four more years.

It turned out that Scalia didn’t last six months. But even after his death reminded everyone that you never know, here’s an article advocating that gay progressives vote for Jill Stein, because even if those votes did happen to cost Hillary the election, “Trump would be an acceptable setback for the ultimate greater good.”

Many are quick to point out that this election is actually about who gets to nominate Supreme Court judges and I agree that it is better to elect a candidate who would nominate liberals to these positions.

But anyone who knows politics knows that all of the potentially vacant seats are currently occupied by conservatives, so in the worst case scenario, after Obama nominates, liberals will still have a 5-4 advantage.

That worked out great, didn’t it? Obama would choose Scalia’s replacement, Ginsburg would live forever, and Kennedy was already a “conservative”, so nobody needed to worry about a Federalist Society extremist replacing him. Supreme Court? Not a problem.

Every pro-choice American who has treated abortion as a secondary issue. For nearly fifty years, pro-choice politicians have hidden behind the Supreme Court, and pro-choice voters have let them do it.

Now that Roe is being overturned, Democrats are beginning to work on protecting abortion rights through federal legislation. But given their narrow majority in the Senate and a few Democratic senators’ unwillingness to end the filibuster, they will be unable to pass that legislation.

But Democrats have had Senate majorities about half the time in recent decades, and for about six months during the Obama administration, they had a filibuster-proof majority. Roe could have been codified then. Or the filibuster could have been eliminated long ago, when the party had a few votes to spare, and then Roe could have been codified.

Even if they could not pass legislation, they could have made Republicans vote it down again and again. They could have challenged those legislators to explain that vote to their constituents.

But it was easier to rely on the Court. As a result, after the Supreme Court’s protection of abortion rights ends, there is no second line of defense. Abortion rights are already gone in Texas, and will vanish in many other states in June.

It didn’t have to be this way.

What Alito wrote

https://www.ajc.com/opinion/mike-luckovich-blog/54-mike-luckovich-going-going-gone/PW5FT437ZJENHNII5YQRL2STFM/

A summary of his arguments, and how they might be used to take away other constitutional rights.


A week ago, Politico released a leaked draft of Supreme Court Justice Samuel Alito’s opinion overturning Roe v Wade. Politico claimed this was to be the majority opinion, representing not just Alito, but supported by Justices Thomas, Gorsuch, Kavanaugh, and Barrett as well. The draft dates from February, and we do not know what revisions may have been made since. The decision on the case (Dobbs v Jackson Women’s Health) is expected to be released before the Court’s current term ends in June.

The case concerns a Mississippi law that bans abortions after 15 weeks, in violation of the existing Supreme Court precedents. The Court has three basic options:

  • Respect the Roe and Casey precedents by invalidating the Mississippi law.
  • Create a loophole that allows the law to take effect, and chips away at abortion rights in general, but does not overturn Roe in its entirety.
  • Overturn Roe, allowing states to regulate or ban abortions as they see fit.

This is how I summarized the situation in March:

So it’s clear which approach Roberts will favor: Don’t make headlines by reversing Roe, but chew away at it by creating a loophole for Mississippi, maybe by changing the definition of “viability”. The language of such a decision could subtly invite states to push the boundary further, until a woman’s right to control her own pregnancy would have little practical meaning. Roe would continue to stand, but like a bombed-out building without walls or a roof, would protect no one.

That probably won’t happen, though, for a simple reason: When Barrett replaced Ruth Bader Ginsburg, Roberts lost control of the Court. He is no longer the swing vote, so he loses 5-4 decisions when he sides with the Court’s three surviving liberals.

And I warned that reversing Roe would not be the final chapter of this saga.

Roe doesn’t stand alone. It is part of a web of substantive due process decisions on a variety of issues. Reversing Roe will send ripples through the whole web, putting all those rights up for grabs.

So here we are. Unless something inside the Court has drastically changed since February, the constitutional right to abortion, which has existed for 49 years, will vanish sometime in June, and a number of other rights will be in doubt, including the right to use birth control, for consenting adults to choose their own sexual practices, and for two people of any race or gender to marry.

What does Alito’s ruling do? Alito has written an unambiguous reversal of Roe.

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. … Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Unenumerated rights. No one claims that the word “abortion” appears in the Constitution. But there are several places where a judge might find implicit protection for rights not specifically listed:

  • The Ninth Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This recognizes the existence of rights beyond those the Constitution mentions, but provides little basis for identifying them.
  • The Equal Protection Clause of the 14th Amendment, which guarantees “any person” within the jurisdiction of the states “the equal protection of the laws”. Judges at many levels have, for example, rooted same-sex marriage here — same-sex couples are guaranteed the equal protection of the marriage laws — but Justice Kennedy’s majority opinion in Obergefell gave equal protection a secondary role.
  • The Due Process Clause of the 14th Amendment, which says that no one can be deprived of “liberty” without due process of law. Abortion and the related privacy rights have been rooted here, in a doctrine called “substantive due process”, which I described in March.

Another place to look for an unenumerated right is in Supreme Court precedents themselves. Under the doctrine of stare decisis, the Court will usually stand by a previous decision, even if the current justices believe the case was wrongly decided. For example, corporate personhood arises from a bad decision the Court made in 1886. It continues to be upheld despite the fact that the word “corporation” does not appear in the Constitution.

His arguments. Alito dismisses the equal-protection option like this:

[I]t is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext designed to effect an invidious discrimination against one sex or the other.”

Due-process rights not otherwise mentioned in the Constitution, Alito writes, have to pass what is called the Glucksberg Test:

[T]he Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered Liberty.”

He concludes that the right to abortion does not pass this test.

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. …

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State.

Much of the opinion’s 98 pages consists of a long history lesson about state laws and common law cases.

Alito also addresses the possibility that a right to abortion is part of a broader right to privacy, which does pass Glucksberg.

Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy”. Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Alito also dismisses this justification in what is by far the weakest part of his argument, consisting mostly (in my opinion) of question-begging and because-I-said-so.

Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. … This attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion

And finally he dismisses stare decisis.

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

I found this part bizarre. Alito’s first two factors just reiterate that he disagrees with the original decision, which is a precondition for stare decisis being relevant at all. (If you agree with a precedent, you don’t need a doctrine to tell you to follow it.) His examples of the “unworkability” and “disruptive effect” of the Roe framework (as adjusted by Casey) are mostly examples of state legislatures persistently attempting to find loopholes that allow them to harass women seeking abortions, and engaging in bad-faith efforts to sneak harassment in as health regulations, building codes, and other Trojan horses.

Would Alito find gun-right decisions (like Heller) “unworkable” if blue states persistently harassed gun owners and forced courts to keep striking down bad-faith laws by the dozens year after year? I doubt it.

And as for “reliance”, I look at my own reliance on Roe (which I explained ten years ago): My wife and I planned our life together around the assumption that we would not have children. We took precautions to prevent pregnancy, but ultimately we could not have fully trusted our plans if abortion had not been an option.

This is not something special about us. Around the nation, women are planning their lives and careers based on the belief that they will not have to carry a fetus, give birth, or raise a child until they decide to do so. In a very real sense, women are not equal to men in a world without abortion.

More critically, since any form of birth control can fail, women whose lives will be in danger if they get pregnant will have to give up sex if abortion is not available.

So Alito’s assertion that there are no “reliance interests” in Roe is just absurd. He doesn’t rely on Roe, so he thinks no one does.

The problem with “deeply rooted in this Nation’s history and tradition”. You know what definitely is “deeply rooted in this Nation’s history and tradition”? Sexism, racism, and bigotry of all sorts. If “liberty” is going to be defined by what that word meant when the 14th Amendment passed in 1868, then only straight White Christian men will ever have unenumerated rights protected by substantive due process. Justice Kennedy acknowledged as much in his Obergefell opinion:

If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.

Jill Lepore went further in The New Yorker:

There is nothing in [the Constitution] about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.

… Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.

Think about the common-law authorities Alito cites, and some of their other opinions. In addition to opinions about abortion, for example, Sir William Blackstone’s Commentaries on the Laws of England also includes this assessment of a wife’s personhood:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.

And Thomas Hale, who, in addition to sentencing two women to death for witchcraft, also had a lasting impact on the law unrelated to abortion, which became known Hale’s Principle:

but the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.

Lepore notes the opinions that Alito does not cite:

Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”

So Alito’s litany that prior to the 20th century abortion rights can be found in

no state constitutional provision, no statute, no judicial decision, no learned treatise

is much less impressive when you realize that no woman had any input into these documents. I find it hard to argue with Lepore’s conclusion:

To use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice.

How should we justify unenumerated rights? History is a fine tool to use when judging what unenumerated rights the Constitution implicitly guarantees to individuals and groups who were enfranchised and empowered at the time (such as straight White Christian men). But in order to keep those rights from further enlarging the unfair advantages those individuals and groups already have, we need to combine those historical findings with a generous respect for the equal protection of the laws.

Justice Kennedy recognized just such a conjunction of prinicples in Obergefell:

The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.

For example: Do men have a traditional right to bodily autonomy, even when someone else’s life is at stake? Of course they do. American law has never forced a man to, say, donate a kidney to someone who will die without it. That would be absurd. But if a woman can be forced to risk her own lives to save the life of a fetus, does she enjoy the equal protection of the laws? I don’t think so.

Many of the same men who would force a woman to give up months of her life or even risk death for a fetus also believe that the Constitution protects them against the comparatively trivial inconvenience of a vaccine shot that might save not just their own lives, but the lives of the fellow citizens that they might otherwise infect. This is not equality under the law.

And about that history … A number of authors suggest that Alito’s reading of the history of abortion is biased. One of the more amusing examples of the historical acceptance of abortion in America is Ben Franklin’s abortion recipe, which he published in 1748 as part of a textbook.

And a brief prepared for this case by the American Historical Association contradicts Alito:

The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.

Are other rights at risk? Alito explicitly denies that his reasoning leads to the end of other rights associated with substantive due process:

As even the Casey plurality recognized, “abortion is a unique act” because it terminates “life or potential life”. … And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

While it is true that lower courts cannot directly quote Alito’s ruling to support eliminating other privacy rights, anti-abortion extremists also describe the pill, Plan B, and IUDs — and basically all birth control other than barrier methods — as “abortificants”. If states can ban abortion, they can ban these as well.

A bill currently advancing through the Louisiana legislature would define personhood as beginning “at fertilization”, which would make the use of an IUD attempted murder. This law would probably pass muster with Alito, who says that abortion laws going forward need only pass a rational basis test, the loosest possible legal standard.

And nothing stops these same five justices from walking the same path for a different issue on a different case. Consider what Alito writes about a right to abortion:

Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century — no state constitutional provision, no statute, no judicial decision, no learned treatise.

This statement is equally true if you replace “abortion” with “same-sex marriage” or “interracial marriage” or “sodomy”. Why would the radical conservative justices not make that substitution in some future case?

Vox’ Ian Millhiser points out that Alito has already made a similar argument against same-sex marriage.

Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.

Every issue, when you come down to it, is “unique” in some way. If criminalization in 1868 shows that a right does not exist, then clearly the right of consenting adults to choose their own sexual practices, for example, is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty”. Neither is the right to marry the person of your choice.

This is where it matters that Alito and his fellow conservative justices made so many misleading and deceptive statements during their confirmation hearings. Could Alito’s statement that he does not “cast doubt on precedents that do not concern abortion” be one more deceptive reassurance that will only last until the five radical justices find a more convenient opportunity to take away other rights that contradict their conservative interpretations of Christianity?

Harvard Law Professor Mary Ziegler thinks it probably is:

The Court can draw whatever distinctions it likes and dodge the cases it doesn’t. But the draft of Dobbs v. Jackson Women’s Health Organization stresses that states were criminalizing abortion. True enough. But in the late 19th century, Congress passed the Comstock Amendment, which criminalized contraception. States criminalized same-sex intimacy.

The draft suggests that abortion is different because of the state’s impact on fetal life. This language — and the draft’s historically questionable narrative about the doctors who originally pushed to ban abortion — will encourage antiabortion leaders to ask the conservative justices to declare that a fetus is a rights-holding person under the Fourteenth Amendment — and that abortion is unconstitutional in blue as well as red states.

If this is where a final opinion ends up, the Court has painted itself into a corner — and maybe by design. Whether abortion is different or not, the Court will not likely send this back to the states for good. It will simply invite conservatives back for the next round.

In short, anyone who trusts Alito’s statement, and so believes that birth control (Griswold), same sex marriage (Obergefell), interracial marriage (Loving), and homosexuality (Lawrence) are secure, is a fool.

We know who Samuel Alito is, and he is not trustworthy.

MAGA 2.0

https://www.ajc.com/opinion/mike-luckovich-blog/422-mike-luckovich-mickey-and-ronald/472WF6YUX5AHJLNSUV2HPYQ5CU/

What if Trump isn’t the worst of our problems?


To many Americans, what’s been going on in Florida lately must seem so bizarre as to be almost comic. It’s gotten increasingly difficult to tell real headlines from stories in The Onion.

The witchhunt against critical race theory has gotten so out of hand that math textbooks are being banned. Public-school teachers who tell their students about the mere existence of same-sex marriages or people who transition from one gender to another (facts that may be necessary to understand other students in the classroom or their families) are not just breaking the law, they are said to be grooming the students for abuse by pedophiles. And if you object to that law, you too are probably grooming kids for pedophiles.

When the Disney Corporation came out (too late) against the law, the DeSantis administration punished it by getting the legislature to reverse the company’s completely unrelated tax advantage — a move which might be illegal, but otherwise will put two Florida counties on the hook for a billion dollars of debt.

When was the last time a Republican governor declared war on a corporation that employs 75,000 of his constituents?

If you think DeSantis’ actions don’t fit any American model of political behavior, you’re right. But that doesn’t mean they’re completely unprecedented. As Zack Beauchamp observed in Vox, the model is Viktor Orbán’s “illiberal democracy” in Hungary. And it may be the next step in the evolution of Trumpism.

The difference between Orbánism and traditional conservatism. The central message of traditional American conservatism is that government needs to get out of the way so that the private sector can create prosperity. So: low taxes, limited regulation, limited government services for the people. What working people miss in public goods (like parks, public education, healthcare, and economic security) supposedly will be more than balanced by all the good-paying jobs that will trickle down from unfettered capitalism.

That rhetoric was never fully embodied in conservative policy, which was fine with government intervention that subsidized oil exploration, the defense industry, and other big-corporate interests. But in spite of occasional inconsistencies, it was a reliable first guess at how conservatives would view an issue.

Traditional conservatives nodded in the direction of the culture war, but their hearts were never in it. Instead, they made cynical use of social/cultural issues to win elections, so that they could assemble enough power to push their small-government economic agenda, as Thomas Frank described in What’s the Matter With Kansas? in 2004.

The trick never ages; the illusion never wears off. Vote to stop abortion; receive a rollback in capital gains taxes. Vote to make our country strong again; receive deindustrialization. Vote to screw those politically correct college professors; receive electricity deregulation. Vote to get government off our backs; receive conglomeration and monopoly everywhere from media to meatpacking. Vote to stand tall against terrorists; receive Social Security privatization. Vote to strike a blow against elitism; receive a social order in which wealth is more concentrated than ever before in our lifetimes, in which workers have been stripped of power and CEOs are rewarded in a manner beyond imagining.

Orbánism, by contrast, uses social/cultural issues as a way to increase government power and entrench the Orbán regime’s hold on that power. Beauchamp explains:

Orbán’s political model has frequently employed a demagogic two-step: Stand up a feared or marginalized group as an enemy then use the supposed need to combat this group’s influence to justify punitive policies that also happen to expand his regime’s power. Targets have included Muslim immigrants, Jewish financier George Soros, and most recently LGBTQ Hungarians.

Whoever the current scapegoat is, the ultimate enemy is always the same: the “cultural elite”.

Broadly speaking, both Orbán and DeSantis characterize themselves as standing for ordinary citizens against a corrupt and immoral left-wing cosmopolitan elite. These factions are so powerful, in their telling, that aggressive steps must be taken to defeat their influence and defend traditional values. University professors, the LGBTQ community, “woke” corporations, undocumented immigrants, opposition political parties — these are not merely rivals or constituents in a democratic political system, but threats to a traditional way of life.

In such an existential struggle, the old norms of tolerance and limited government need to be adjusted, tailored to a world where the left controls the commanding heights of culture. Since the left can’t be beaten in that realm, government must be seized and wielded in service of a right-wing cultural agenda.

The difference between Orbánism and Trumpism. At its root, Trumpism has always been a personality cult. If that wasn’t already obvious in 2016, it certainly had became so by 2020, when the Republican Convention refused to update its platform, replacing it instead with a resolution whose only substantive point was

RESOLVED, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda

In other words: The Republican Party stands for whatever President Trump chooses to announce. The party’s position on healthcare, education, foreign policy, immigration, and everything else is whatever Trump says it is.

Since Trump lost the 2020 election and tried (unsuccessfully) to stay in power anyway, Trumpworld has gotten even more culty: Where you stand in MAGA-land depends not on your support or opposition to any political philosophy or policy proposal, but what you say about Trump. Liz Cheney has been tossed out of the Wyoming Republican Party because she denies that Biden stole the election and holds Trump responsible for the 1-6 coup attempt. Marjorie Taylor Greene is at the center of the movement, because she has never breathed a word against the Orange One. If Brad Raffensperger had “found” the 11,780 votes Trump needed to win Georgia, he’d have Mar-a-Lago’s full support. But he didn’t, so Trump is campaigning against him.

Trump has become associated with both social conservatism and traditional conservatism, but the relationship is almost entirely opportunistic: Trump says things to his crowds, and if they respond he uses the line again. In the course of the 2016 campaign, these applause lines evolved into slogans, like “Build a Wall”. After he took office, underlings were tasked with turning those slogans into policies. The policies often seemed half-baked because they were: Candidate Trump never had any idea how he would implement his applause lines.

But in hindsight we often overlook all the times when candidate Trump floated liberal ideas, like when he told 60 Minutes that his healthcare plan would cover everybody and “the government’s gonna pay for it”. Or when he said his tax plan would raise taxes on the rich. If his stadium crowds had responded to those proposals the way they responded to building a wall or banning Muslims, he would happily have stolen Bernie’s agenda, and underlings would have been tasked with turning those slogans into programs.

The point was never policy. It was big, beautiful crowds cheering for Trump.

He got elected as a Republican, so he staffed his administration with Republicans and leaned on Republicans in Congress to create legislative victories for him. That was as far as his governing vision went. Paul Ryan already had a tax plan — one that handed trillions of dollars to corporations and the very rich — so that got passed. No two Republicans in Congress had the same vision of how to replace ObamaCare, so nothing happened.

Trump ended up appealing to the same kind of voters Orbán targeted — the racists, sexists, homophobes, xenophobes, and Islamaphobes Hillary Clinton labeled a “basket of deplorables” — so Trumpism started converging towards Orbánism. But it never completely got there, because ultimately Trumpism could only be about Trump. Beauchamp explains:

During his presidency, many observers on both sides of the aisle compared Trump to the Hungarian autocrat — and not without some justification. But after a 2018 visit to Hungary, I concluded that Trump was not competent or disciplined enough to implement Orbán-style authoritarianism in America on his own. The real worry, I argued, was a GOP that took on features of Orbán’s Fidesz party.

In the end, Trump is Trumpism’s biggest weakness: It’s the personality cult of a man with an unappealing personality. No wonder over 80 million Americans turned out to vote against him in 2020.

The law as a weapon. One point of convergence between Trump and Orbán is the use of boogeymen: Trump’s invading migrant caravans, for example. But it’s never been in Trump’s character to go full apocalyptic: There are villains in the world, but none of them are a match for Trump. His worldview is ultimately too episodic to support a death-struggle against the Apocalypse. Every day is a new story in which he defeats his enemies. He wins today, he won yesterday, he’ll win tomorrow. Anybody who tells you he’s not winning is peddling fake news.

Orbánism is much darker. Satanic forces threaten our entire way of life, and only a government much stronger than the current one can stand against it. Norms of civility and fair play can’t be allowed to stop us from defending society from the existential threat.

What’s hardest to grasp from a traditional American point of view is that the law, whatever it says, is just a weapon to use in the apocalyptic struggle. It does not embody ideals or principles of any kind. It’s nothing more than a stick you can use to club your enemies.

Trump sometimes used laws this way, but denied he was doing it — illustrating the adage that hypocrisy is the homage vice pays to virtue. Title 42 is a good example: A 1944 public health law allows the government to keep asylum-seeking immigrants from entering the country during a public-health emergency.

We know, of course, what Trump thought about the Covid pandemic: He repeatedly and consistently played down the idea that it was an emergency requiring drastic action, and encouraged his followers to behave as if nothing unusual were happening. When state governors took emergency anti-Covid actions, Trump tweeted things like “Liberate Michigan” while armed protesters surrounded the state capitol and conspirators plotted to kidnap Governor Whitmer.

But he wanted to shut down immigration, and Title 42 was a law that allowed him to do it. So for that purpose, and that purpose only, the Covid pandemic was an emergency.

In the Orbán model, by contrast, there is no need for hypocrisy or denial. Society is in a death struggle, so you pick up whatever weapon happens to be lying around and use it without apology.

That’s what DeSantis is doing against Disney. There is no cover story that lays out a connection between the Reedy Creek Improvement District and the Don’t Say Gay law. Nor does DeSantis claim that his sudden interest in Disney’s tax status is coincidental. Disney has sided with the pedophiles threatening to destroy American society, so it must be punished. (And other corporations must be warned what can happen if they step out of line.)

It’s not about ideology or the spirit of the laws; it’s about clubbing your enemies.

It’s worth pointing out that a government powerful enough to keep corporations in line by threatening reprisals is precisely the nightmare scenario of traditional conservatives. It is almost certainly illegal to use state power this way. But will courts packed with conservative judges say so? And if they do now, what if a President DeSantis gets to appoint even more judges?

That’s how events played out in Hungary. Here’s Beauchamp again:

This use of regulatory power to punish political opponents is right out of Orbán’s playbook. In 2015, Lajos Simicska — an extremely wealthy Hungarian businessman and longtime Orbán ally — turned on his patron, using a vulgar term to describe the prime minister.

In retaliation, the government cut its advertising in Simicska’s media outlets and shifted contracts away from his construction companies. After Fidesz’s 2018 election, Simicska sold his corporate holdings (mostly to pro-government figures). He moved to an isolated village in western Hungary; his last remaining business interest was an agricultural firm owned by his wife.

Technically, that was all probably illegal under Hungarian law too. But by then, the judiciary was under control.

The broader movement. DeSantis’ move to Orbánism did not come from nowhere. The Hungarian model has been widely praised and publicized in conservative circles for some time now. Tucker Carlson has broadcast his show from Hungary. Later this month, CPAC will hold a meeting in Budapest, with Viktor Orbán as its featured speaker.

This week, the New York Times has been running a series on Tucker Carlson and his message. Part 3 focuses on just how dark and apocalyptic that message has become.

Night after night, the host of the most-watched show in prime-time cable news uses a simple narrative to instill fear in his viewers: “They” want to control and then destroy “you”.

A key part of the Carlson worldview is “replacement theory”, that Democrats want to import a new electorate that can be counted on to outvote the previous White majority. He also uses the “grooming” smear to legitimize violence:

I don’t understand where then men are. Like, where are the dads? Some teacher’s pushing sex values on your third grader. Why don’t you go in there and thrash the teacher? This is an agent of the government pushing someone else’s values on your kid about sex. Where’s the pushback?

Moving on? Already, we are seeing stories about how the Republican Party is “moving on” from Trump. That buzz might gain momentum if Trump-endorsed candidates underperform in the upcoming GOP primaries, or if the January 6 Committee’s public hearings in June capture public attention. As the 2024 presidential cycle begins, Democrats, moderates, and traditional conservatives alike may be tempted to sigh with relief if some alternative to Trump emerges.

But we need to be careful not to relax too quickly. Most likely, the Trump alternative will not be some Liz Cheney or Mitt Romney-like traditional conservative, or represent a Lisa Murkowski or John Kasich-ish move back towards the political center. The alternative could be DeSantis himself, or some other MAGA 2.0 figure. We’ll need to pay attention to the darkness of the rhetoric and the commitment to the rule of law. If people believe what this candidate is saying about the threats to our way of life, what will they be willing to do to win? Or do to their enemies after they win?

Elon and Twitter

https://theweek.com/political-satire/1012516/elon-the-puddy-tat

Will Elon Musk buy Twitter? Should he? What if he does?


Wednesday, when Elon Musk announced a $38 billion offer to buy the 90.8% of Twitter stock he didn’t already own, the news feeds I follow erupted in two very different directions:

  • Political commentators began assessing the implications of the world’s richest man gaining sole control of one of the world’s most influential social-media platforms.
  • Financial writers skeptically asked, “Is this really going to happen?”

The financial question seems logically prior to the political question, so let’s start there. Better yet, let’s start with some general background.

Who is Elon Musk? Musk is a high-tech entrepreneur whose start-ups have struck gold several times, with the proceeds getting rolled into ever-bigger efforts. As a result, he is now believed to be the richest person in the world, with a net worth recently estimated at $273 billion (a figure that fluctuates with the stock market). He is most famous (and richest) from his investment in the electric automobile company Tesla. But he also founded and owns a large chunk of the satellite-launching company SpaceX. He has founded and sold off businesses that became part of Compaq and PayPal.

Born in South Africa, he moved to Canada as a teen-ager to avoid serving in the South African army, which was then fighting to defend the apartheid system. From Canada he moved to the United States and became a US citizen in 2002. (If you hope or fear that he might become president someday, naturalized citizens aren’t eligible.)

His political views are a mixture of right and left: He takes climate change seriously, and Tesla plays an important role in the electrify-everything strategy to reduce carbon emissions. He also has a strong libertarian streak, opposing most government regulation and boosting cryptocurrencies. But libertarianism hasn’t stopped him from taking advantage of government programs when he can. He opposes raising taxes on rich people like himself. He moved to Texas to avoid California taxes.

He has used his 81-million-follower Twitter account to spread Covid misinformation, and he resisted shutting down Tesla’s California factory during the lockdown. He is anti-woke. and anti-cancel-culture. His stated motive for buying Twitter is to protect free speech, but he does not seem worried about Twitter’s disinformation problem.

His public image is larger than life. If you like him, he fits the billionaires-will-save-us model of Bruce Wayne and Tony Stark, or perhaps Hank Rearden. If you don’t, he’s a James Bond villain waiting to make his move — BitCoinFinger, maybe.

Why Twitter? If you want to acquire influence on America’s (and the world’s) politics and culture, Twitter gives you more bang for your buck than any comparable platform. Buying other social media giants like Meta (owner of Facebook and Instagram) or Alphabet (owner of Google and YouTube) would cost more than even an Elon Musk can hope to come up with. Meta has a $570 billion market capitalization, and Alphabet’s is $1.7 trillion.

The reason Twitter is comparatively cheap (i.e., tens of billions rather than hundreds of billions) is that it hasn’t exploited surveillance capitalism as effectively as the other major social-media platforms. Not that it hasn’t been trying, but it hasn’t had the same level of success.

In the surveillance-capitalism model, the purpose of offering free internet services is to accumulate data about the people who use them. That data, in turn, can be used to exploit or manipulate the people who inadvertently provided it. Targeted advertising is the most obvious (and one of the most benign) uses of this data. Facebook, for example, has figured out that I’m learning to cook, so it shows me ads for air fryers and carbon-steel skillets. This beats the less-well-targeted old days, when spam email tried to sell me viagra and pictures of underage girls.

But the data can also be used to make the platform itself more addictive, and to design disinformation that individual users will be most likely to believe and act on. Unfortunately for democracy and civil society, the most addicted users are the ones who have gone down some conspiracy-theory rabbit hole. So that’s where the algorithms lead.

Twitter’s comparatively poor financial performance relative to Facebook and Google is one reason why Musk skeptics are alarmed by his ambition to “unlock” Twitter’s “enormous potential”.

Will Musk really buy Twittter? Musk announced on March 14 that he had bought 9.2% of Twitter. At first there was speculation that he wanted a seat on the board, or for the company to agree to some list of changes. But Wednesday he announced an offer to buy the whole company for a price that puts Twitter’s value at $43 billion. That would make Twitter a private company, and Musk could do whatever he wanted with it.

Financial types were immediately skeptical. Sure, Musk says he wants to spend another $38 billion buying Twitter stock. But Musk says a lot of things.

[J]ust because Elon Musk says something doesn’t mean it’s so — even when he’s talking about his own money. Musk is, at a minimum, maddeningly inconsistent. In 2018, for instance, he announced — on Twitter — that he wanted to turn Tesla into a private company and that he had “funding secured.” Which turned out not to be true.

The next question was whether Musk even has $38 billion. He’s certainly worth much more than $38 billion, but (as any rich-on-paper homeowner knows) that doesn’t mean he has cash. He could raise cash by selling or borrowing against his Tesla and SpaceX holdings, but does he really want to do that? Such a move might risk him losing control of the rest of his empire at some point down the road.

And then there’s the possibility that Twitter may fight to stay out of Musk’s control. Friday the Twitter board adopted a proposal that would make it more expensive to acquire.

Twitter said on Friday it adopted a poison pill that would dilute anyone amassing a stake in the company of more than 15% by selling more shares to other shareholders at a discount. Known formally as a shareholder rights plan, the poison pill will be in place for 364 days.

Just how much more money Musk would have to commit depends on how the existing shareholders respond to the plan, and how much capital they could come up with. There’s also the possibility of a rival bid emerging.

It’s also possible that Musk never intended to buy Twitter, but instead anticipates burnishing his crusading reputation after the company fends off his bid. In other words: He tried to save us, but the corrupt system defended itself.

Finally, Musk may be engaging in an elaborate market manipulation. Sometimes would-be takeover targets offer greenmail to make predator capitalists go away. Or if Musk’s offer elicits an rival offer for a higher price, he could walk off with a considerable profit on the shares he already owns.

But what if he succeeds? Whether you think Musk is the answer to Twitter’s problems depends on what you think those problems are. Voices from both the Left and Right worry about social media platforms forming a bottleneck that limits political discussion, but they frame that problem very differently.

If the problem is Big-Tech political bias, then Musk could be the answer. Conservatives see any institution they don’t control as biased against them, so they cast Twitter and Facebook as powerful allies of “cancel culture” and “woke-ism”. (Whether Big Tech actually is biased against conservative beliefs is questionable. But any anti-disinformation effort is going to affect conservatives more than liberals, because conservatives spread more disinformation.)

So Tucker Carlson, a powerful disinformation-spreader himself, is rooting for Musk to take over Twitter. MAGA types anticipate Trump getting his Twitter account back. (He lost it after using Twitter to promote the January 6 coup attempt.) And given how badly Trump’s copycat Truth Social platform is going, getting back on Twitter must look good to him, in spite of his claims to the contrary.

But if the problem is the bottleneck itself, Musk just makes it worse. A small number of corporations have an inordinate influence on what can be discussed and how widely a given point of view spreads. As public companies, those entities are accountable at least to their stockholders, and (to a lesser extent) to the public. A Musk-owned Twitter, by contrast, would be accountable to him alone. Trusting the world’s richest man to look after the public interest seems incredibly naive. (I am reminded of sci-fi humorist Terry Pratchett’s description of the system of government in Ankh-Morpork: “Ankh-Morpork had dallied with many forms of government and had ended up with that form of democracy known as One Man, One Vote. The Patrician was the Man; he had the Vote.”)

Another piece of the nightmare is what Musk (or any unfettered individual) could do with the kind of data Twitter collects (or could decide to collect in the future). This is not just tweets, but perhaps also the location data from smartphones running the Twitter app. If you always knew who was with who when, how much blackmail material would you have?

https://jensorensen.com/2022/04/08/the-marketplace-of-ideas-media-conspiracy/

Could competition emerge? Conservative attempts to respond to their perception of Twitter’s bias by creating their own platforms, like Parler and Truth Social, have so far not taken off. (I have to wonder whether conservatives really want their own platform. Isn’t the whole point to troll liberals?) Whether liberals would be any more successful is anybody’s guess.

Attempts by one Big Tech corporation to invade another’s territory have also done badly. Google launched Facebook alternative Google+ with much fanfare in 2011, but shut it down in 2019.

The basic problem is a network effect: Any social network where people already gather for a specific purpose has a huge advantage over a new network attempting to fill the same niche. The problem is especially difficult when the existing service is free, preventing competition on price.

However, imagine if Musk’s “free speech” alterations make Twitter all but unusable. Tweets you actually want to see might get buried under disinformation and hate speech. Posting anything at all might open you up to abusive attacks and cyber-stalking. (In other words: Like now, but moreso.) A better curated platform might become attractive enough that a deep-pocketed competitor might emerge. (What if, for example, Amazon started a paid-subscription model, but the cost was folded into Amazon Prime membership?)

What’s the real problem? My own feeling is that trying to fix America’s “free speech problem” (as Musk claims to want to do), is misguided, because the root problem is actually much bigger. Free speech, bad faith, incivility, disinformation, and a simultaneous lack of public trust and public trustworthiness are all part of the same picture. We’re not going to solve one of those problems without thinking about all of them.

Why the Russians did it

https://www.ajc.com/opinion/mike-luckovich-blog/327-mike-luckovich/M3CWVXFYINEPLGIBUKQMMLTFVE/

The atrocities discovered when Ukrainian forces retook Bucha are in perfect harmony with Kremlin rhetoric.


As Russia retreated from its attempt to encircle Kyiv, Ukrainian forces entering the town of Bucha reported finding the bodies of hundreds of civilians, many of them killed execution-style, with their hands tied behind their backs. Some bodies were buried in mass graves while others were left lying in the road.

My first thought was that it was wise to be skeptical of these reports. [1] It obviously serves the Ukrainian cause if the world believes Russia’s soldiers behaved in monstrous and inhuman ways, or that the Kremlin authorized them to do so. Using atrocity stories as propaganda goes back at least as far as World War I, when the British exaggerated stories of German crimes in Belgium.

Predictably, Russia claimed the Ukrainians had faked everything. This theory, though, is no less outrageous, because it seems to imply that the Ukrainian forces killed their own people when they re-entered the town.

As evidence mounts, I have come around to believing the Ukrainian reports. Independent reporters were brought in quickly and given a lot of freedom to wander about and talk to survivors. Satellite photos and intercepted radio chatter from before the Russians withdrew appear to correspond to some of the bodies found. The more we hear, the more the Ukraine-faked-it theory acquires the common flaw of most bad conspiracy theories: The number of people who would have to be in on the plot has grown beyond reasonable bounds.

The Ukrainian reports also fit with the Russia’s apparent disregard for civilian casualties when it shells cities. The most recent example was the missile attack on a train station in Kramatorsk. Previous Russian campaigns in Chechnya and Syria have been similarly brutal. (A general associated with massive civilian casualties in Syria has just been put in charge of the Ukraine campaign.)

But what clinches the case for me is not anything from Ukrainian or NATO sources, or from the western press. It’s an article called “What should Russia do with Ukraine?” by Russian political scientist Timofey Sergeytsev, published a week ago by the Russian state news agency RIA Novosti. (Alternate translation here.)

Sergeytsev is not a soldier, not in Ukraine, and as far as I know has killed no one. But he has documented, and state media has published, an argument that would justify (and perhaps even welcome) all the actions Russia has been accused of.

The article revolves around “de-Nazifiying” Ukraine, a phrase that has been the centerpiece of Russian war propaganda. To Sergeytsev, this term means much more than simply deposing the current “Nazi” government led by President Zelensky, a Jewish Ukrainian whose grandfather’s brothers were killed in the Holocaust. The deeper problem, you see, is that the Ukrainian people support Zelensky and don’t want to be dominated by Russia.

De-Nazifying is necessary when a significant part of the people – most likely, the majority – have been sucked into the Nazi regime politically. That is, when the “people are good – the government is bad” hypothesis no longer works.

In other words: the Ukrainian people are not just misled, they are bad and deserve to be punished.

De-Nazifying is the measure applied towards the masses of Nazi followers whom one is not able to subject to direct punishment as war criminals because of technicalities.

… Besides the top leaders, a significant part of the masses are guilty as accomplices of Nazism, the passive Nazis. They supported and indulged the Nazi power. The just punishment of this part of the population is possible through inflicting the unescapable hardships of our just war against the Nazi system, with careful and cautious relations towards other civilians when feasible.

In order to de-Nazify Ukraine, Russia needs total control. A “Nazified” populace has no right to self-determination or democracy.

De-Nazifying requires winning, which means achieving the unconditional control over the de-Nazifying process and the government that maintains this control. Hence, a de-Nazified country cannot be sovereign. Being the de-Nazifying country, Russia cannot practice a Liberal approach to de-Nazifying. The guilty party subjected to de-Nazifying cannot dispute our de-Nazifier’s purpose.

What will Russia do with once it achieves total control?

De-Nazifying the population further consists in re-education through an ideological repression (suppression) of Nazi attitudes and a strict censorship: not only in the political sphere, but also critically, in culture and education.

Of course, Ukraine will have to be cut off from the West, and especially from Western aid that might rebuild the country after the war.

Their political aspirations cannot be neutral – the expiation of guilt before Russia for treating it as an enemy can transpire through relying on Russia in the processes of restoration, revival and development. No “Marshall Plans” should be allowed for these territories. There can be no “neutrality” in the ideological and practical sense, compatible with de-Nazifying. The cadres and organizations that are the de-Nazifying instrument in the newly de-Nazified republics cannot but rely on Russia’s direct military and organizational support.

For how long? Decades, at a minimum.

The de-Nazifying time frame is no less than one generation that needs to be born, brought up and to have reached maturity during the process of de-Nazifying.

In the process, the very idea of Ukraine has to be stamped out, and replaced with the identities of “Minor Russia” and “New Russia”. [2]

De-Nazifying will inevitably also be a de-Ukrainizing, i.e., rejecting the large-scale artificial overblowing of the ethnic component in self-identification of the population of the territories of the historical Minor Russia and New Russia. … Unlike Georgia and the Baltic countries, Ukraine is impossible as a nation-state, as history has shown, and any attempts to “build” a nation-state naturally lead to Nazism. Ukrainism is an artificial anti-Russian construct that does not have its own civilizational content; it’s a subordinate element of an alien and unnatural civilization.

The territory-formerly-known-as-Ukraine will have to be divided by an “alienation line” that separates Russia-loving people in the east (who could aspire to “potential integration into Russian civilization”) from Russia-hating people in the west (some of whom will have to be relocated from the east). But even the western part will never be independent.

The guarantee of the preservation of this residual Ukraine in a neutral state should be the threat of an immediate continuation of the military operation in case of non-compliance with the listed requirements. Perhaps this will require a permanent Russian military presence on its territory.

Again: This is not some Western analysts’ dark fantasy of what Russians are thinking. This is Russian state media telling Russians what they should think.

So imagine that you are a Russian soldier and that you believe you are entering a Nazi country (which is not really a country, but “an artificial anti-Russian construct that does not have its own civilizational content”) whose civilians bear the “guilt” of treating Russia as an enemy. Imagine that only “technicalities” prevent these civilians from being punished as war criminals, and that “the unescapable hardships of our just war” constitute their “just punishment”.

What would restrain you from committing crimes like those whose evidence is being found in Bucha? After all, it’s only the “other civilians” (not the Nazi-supporting majority) you need to be careful with, and only then “when feasible”.


[1] I hate that people like Tucker Carlson and Joe Rogan have poisoned the phrase “just asking questions”. Questions should be asked, but as part of a process of seeking answers.

The problem with Carlson and Rogan isn’t that they’re asking questions, but that they’re not seeking answers. Instead, they ask questions simply to blow smoke and create paralyzing doubt. They imply that the questions they ask have no good answers, invent repressive forces that are trying to stop people from asking them, and cast themselves as brave rebels against those imagined forces.

I remember, early in Covid vaccination campaign, hearing Carlson do this same routine about vaccine safety. It took me less than a minute to google one of his “courageous” questions and discover that it had been asked and answered on the CDC web site. If Carlson didn’t want to accept the CDC’s answer, fine; but to pretend that the authorities had no answer and were trying to suppress the question was just dishonest.

[2] The article identifies Ukrainian nationalism with S. Bandera. (One translation calls the current regime “Banderite”.) I had to look up who that was: Stepan Bandera was a World-War-II-era Ukrainian nationalist who (depending who you talk to) was either a Nazi collaborator or a Ukrainian patriot who tried to play the Nazis and Soviets off against each other.

Limitations of Experience

No Sift next week. The next new articles will appear on April 11

He characteristically would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our own experience.

Supreme Court Justice Byron White
“A Tribute to Justice Thurgood Marshall”

This week’s featured post is “Where Does the Religious Right Go After Roe?

How did Christianity become so toxic?“, from two weeks ago, was one of the rare posts to have a bigger second week than its first. It has now gotten over 17,000 page hits, and is still running. That puts it in 13th place on the Sift’s all-time hit list, mostly behind posts from the era when Facebook algorithms let links go viral more easily.

This week everybody was talking about Judge Jackson

https://theweek.com/political-satire/1011725/the-protector-of-criminals

The televised interviews with the Judiciary Committee are over now. The committee vote on Ketanji Brown Jackson’s nomination is planned for April 4, and she seems likely to pass on a party-line vote.

The full Senate will vote sometime after that. She can be approved with only Democratic votes. So far, no senator of either party has announced a decision to break ranks. Senator Manchin recently came out in support, which probably means she’s in, though Senator Sinema still hasn’t committed herself.


Charles Blow pointed out how far the Senate has gotten from its constitutional duties. The point of the confirmation hearings on Judge Jackson’s nomination has never been to examine her qualifications or judicial philosophy. The point, rather, is to “put on a show”.


Lindsey Graham and various other Republican senators used the hearings to air their issues with Brett Kavanaugh’s confirmation hearings. But from my point of view, comparing those hearings makes a very different point: If you’ve ever wondered what white male privilege consists of, the contrast between the two hearings makes it obvious.

Judge Jackson had to be responsive, civil, and under control at all times, while Republican senators frequently interrupted her or talked over her. Kavanaugh, on the other hand, was free to go on a partisan rant, push a conspiracy theory, cry and express anger, lie and misdirect, and throw hostile questions back at his questioners. A Black woman could never get away with that kind of behavior.


The Republican senators at the hearing knew they were using smear tactics. Ted Cruz, for example, tied Jackson to books that are used at a private school where Jackson serves on the board (as if she had personally selected those books). He then misrepresented the books.


GOP senators repeatedly referenced Wesley Hawkins, an 18-year-old who Judge Jackson sentenced to three months prison, three months home detention, and six years of supervision because he possessed child pornography. He’s now 27 and has not been charged with anything since. The WaPo detailed his case and talked to him.


One popular falsehood I’ve heard during the hearings is that conservatives believe in judicial restraint while liberals want to expand judicial power. WaPo’s Henry Olsen put it like this:

Democrats favor the court expanding its jurisdiction into political matters; Republicans favor a restrictive view, generally deferring to democratically elected bodies at all levels of government rather than making the court the final arbiter of public policy. This is one of the most important political issues of our time.

If that was ever true, which I doubt, it certainly is not true now.

One case this week demonstrated how conservative justices are reaching for power: Three conservative justices — Thomas, Alito, and Gorsuch — tried to insert judges into the Navy’s chain of command, undercutting President Biden’s role as commander-in-chief.

Another right-wing judicial power grab is the push for “nondelegation“, a theory under which Congress cannot delegate regulatory power to agencies of the executive branch like the EPA or the SEC. In practice, this makes the Supreme Court the ultimate regulator, as it decides which regulations are or aren’t sufficiently specified by Congress’ authorizing legislation.

And finally, we can’t ignore the two places where conservative justices regularly invent new rights: for corporations and for right-wing Christians. Corporations are not mentioned in the Constitution, and yet conservatives are constantly defending their right to influence elections or to act on their religious convictions as “corporate persons“. And right-wing Christians (but not other religious groups) are held to be largely exempt from laws they don’t like.

and Ginni Thomas

https://theweek.com/political-satire/1011842/ginnis-banner

People who pay attention have known for years that Ginni and Clarence Thomas were a scandal waiting to happen: Ginni is a right-wing political organizer, and she runs a profit-making lobbying firm. Her husband Clarence is a Supreme Court justice who rules on cases that sometimes overlap with Ginni’s interests. That’s been going on for years. The New Yorker detailed the ethical problems the Thomases raise back in January. The NYT Magazine followed in February.

What’s new this week are text messages she exchanged with Trump’s Chief of Staff Mark Meadows during the period between the election and the January 6 riot.

The messages — 29 in all — reveal an extraordinary pipeline between Virginia Thomas, who goes by Ginni, and President Donald Trump’s top aide during a period when Trump and his allies were vowing to go to the Supreme Court in an effort to negate the election results.

Ginni encourages Meadows (and Trump) to “stand firm” against “the greatest Heist of our History”. She gives strategic legal advice on a case that her husband might have needed to rule on.

Among Thomas’s stated goals in the messages was for lawyer Sidney Powell, who promoted incendiary and unsupported claims about the election, to be “the lead and the face” of Trump’s legal team.

She repeatedly embraced the most bizarre and baseless conspiracy theories about the election.

Ginni has admitted attending the January 6 rally, but claims to have left early, before the assault on the Capitol.

Clarence was the lone dissent in an 8-1 decision not to hear Trump’s objections to the National Archives delivering documents to the January 6 Committee. The Ginni/Meadows texts were not part of that trove, but his wife’s involvement certainly creates a strong appearance of impropriety.

and Ukraine

This week Ukraine has been pushing back Russian troops threatening Kyiv, while Russian forces continue to make slow progress in the eastern part of the country.

Russia is now claiming that everything has gone according to plan.

“The main objectives of the first stage of the operation have generally been accomplished,” Sergei Rudskoi, head of the Russian General Staff’s Main Operational Directorate, said in a speech Friday. “The combat potential of the Armed Forces of Ukraine has been considerably reduced, which … makes it possible to focus our core efforts on achieving the main goal, the liberation of Donbas.”

Of course, the combat potential of the Russian forces has also been reduced, which probably wasn’t part of the plan. Maybe this announcement means that Russia has scaled down its ambitions and no longer intends to conquer the entire country. Or maybe the speech is just noise. It’s always hard to tell.


Karolina Wigura and Jaroslaw Kuisz write in the NYT about the divide within NATO. Everybody supports Ukraine against Russia, but the former Warsaw Pact countries in the East frame the issue differently than NATO’s original members in the West, including the United States.

For Western countries, not least the United States, the conflict is a disaster for the people of Ukraine — but one whose biggest danger is that it might spill over the Ukrainian border, setting off a global conflict.

For Central and Eastern European countries, it’s rather different. These neighbors of Russia tend to see the war not as a singular event but as a process. To these post-Soviet states, the invasion of Ukraine appears as a next step in a whole series of Russia’s nightmarish assaults on other countries, dating back to the ruthless attacks on Chechnya and the war with Georgia. To them, it seems foolhardy to assume Mr. Putin will stop at Ukraine. The danger is pressing and immediate.

While the West believes it must prevent World War III, the East thinks that, whatever the name given to the conflict, the war against liberal democratic values, institutions and lifestyles has already started. …

NATO’s cautious steps look to many Central and Eastern Europeans like an echo of the phony war of 1939, when France and Britain undertook only limited military actions and did not save their eastern ally, Poland.

Estonian Prime Minister Kaja Kallas summed up the Eastern view:

At NATO, our focus should be simple: Mr. Putin cannot win this war. He cannot even think he has won, or his appetite will grow.


Elliot Ackerman is a former Marine and intelligence officer writing for The Atlantic. He had an enlightening conversation with a former Marine now fighting for Ukraine about the way weapons like the Javelin missile have changed the tactics of warfare.

When Ackerman was in Fallujah in 2004, Abrams tanks were key in the infantry’s advance into the city — a role the tank has played since it was invented in World War I to lead soldiers over enemy trenches.

On several occasions, I watched our tanks take direct hits from rocket-propelled grenades (typically older-generation RPG-7s) without so much as a stutter in their forward progress. Today, a Ukrainian defending Kyiv or any other city, armed with a Javelin or an NLAW, would destroy a similarly capable tank.

If the costly main battle tank is the archetypal platform of an army (as is the case for Russia and NATO), then the archetypal platform of a navy (particularly America’s Navy) is the ultra-costly capital ship, such as an aircraft carrier. Just as modern anti-tank weapons have turned the tide for the outnumbered Ukrainian army, the latest generation of anti-ship missiles (both shore- and sea-based) could in the future—say, in a place like the South China Sea or the Strait of Hormuz—turn the tide for a seemingly outmatched navy. Since February 24, the Ukrainian military has convincingly displayed the superiority of an anti-platform-centric method of warfare.

They also discussed the difference in philosophy between the Russian and the more NATO-style Ukrainian command structures.

Russian doctrine relies on centralized command and control, while mission-style command and control—as the name suggests—relies on the individual initiative of every soldier, from the private to the general, not only to understand the mission but then to use their initiative to adapt to the exigencies of a chaotic and ever-changing battlefield in order to accomplish that mission.

The Russian system breaks down when soldiers wind up in situations that make it impossible to carry out their specific orders. (As orders to go to a particular place break down when the roads are jammed with traffic.) They can’t improvise effectively, because they don’t know what the larger mission is.


Wednesday, the NYT and CNN published articles about US contingency planning for scenarios where Russia escalates to nuclear, chemical, or biological warfare. It’s very hard to tell how seriously to take this possibility.

Dictators have a long history of playing chicken with democracies, figuring that a leader not accountable to public opinion has more room to take risks, so he will be able to get elected leaders to back down. This is basically the story of Hitler and the West prior to his attack on France in 1940.


He is the very model of a Russian major general.

and the pandemic

Last week I wondered if we were in the eye of the storm. This week the trend definitely seems to have turned: After two months of steep drops in the number of new Covid cases, the curves look like they’re turning upward again.

Last week, new cases per day were running just under 30K, this week they’re just over. If you use a two-week window, that’s still a 12% decline. But the national flattening out over the last week hides the fact that cases have turned upward in the parts of the country that usually lead the statistics (New York City, for example), but are still falling in parts that lag.

This is personal to me. My wife takes a cancer-survivor drug that can have immune-suppressing side effects, so we’ve been especially cautious during the pandemic. And though I’ve started to enjoy cooking during the pandemic, I still miss the days when we ate out often. (Take-out is not the same.) A few weeks ago we made a judgment: If new-cases-per-100K in our Boston-suburb county got into single digits, we could eat indoors at restaurants if we avoided the times when they’re crowded.

We didn’t get there. Our county’s number bottomed out at 11 sometime last week, and is now back up to 16. This morning it’s snowing again, and outdoor dining seems far away.

and anti-LGBTQ oppression

https://theweek.com/political-satire/1011769/get-in-the-closet

Texas Attorney General Ken Paxton has sent the Austin Independent School District a letter informing them of his opinion that their Pride Week is illegal.

By hosting “Pride Week”, your district has, at best, undertaken a week-long instructional effort in human sexuality without parental consent. Or, worse, your district is cynically pushing a week-long indoctrination of your students that not only fails to obtain parental consent, but subtly cuts parents out of the loop.

AISD says the focus of its Pride Week is “creating a safe, supportive and inclusive environment”, not teaching about human sexuality. Apparently, Paxton can’t see the difference between teaching students to accept one another and teaching them how to perform sexual acts.

The district shows no signs of giving in; the superintendent tweeted back:

I want all our LGBTQIA+ students to know that we are proud of them and that we will protect them against political attacks

Paxton, you may recall, also opines that gender-affirming therapy is child abuse, and was investigating nine Texas families with trans children until a state court made him stop.

After he’s done persecuting children and their families, I have to wonder how much time he has left to do his job as the state’s chief law enforcement officer.


If you want to know where right-wing rhetoric about schools “grooming” children for pedophiles is headed, look at Mississippi’s former legislator and gubernatorial candidate Robert Foster, who tweeted:

Some of y’all still want to try and find political compromise with those that want to groom our school aged children and pretend men are women, etc. I think they need to be lined up against wall before a firing squad to be sent to an early judgment.

When Mississippi Free Press requested an interview to discuss this, Foster messaged back:

I said what I said. The law should be changed so that anyone trying to sexually groom children and/or advocating to put men pretending to be women in locker rooms and bathrooms with young women should receive the death penalty by firing squad.

So if you’re advocating for trans people to choose their own bathrooms, or trans women to be allowed to compete in women’s sports, you should be shot. Or let me boil that down further: I should be shot. Maybe you should be shot too.

It’s hard to come up with the right response to stuff like this, because real pedophiles do exist, just not with anything like the numbers or the organizational power of Foster’s fantasies. In the same way, there were a handful of real Soviet spies during the Red Scare, and probably some tiny percentage of the six million Jews Hitler killed were up to no good.

To be fair, this guy is nobody. He didn’t get nominated for governor, and there are a lot of crazy former state legislators out there. But Florida Governor DeSantis’ spokesperson has also described opponents of the Don’t Say Gay bill (that’s me again) as “groomers”.

If you’re against the Anti-Grooming Bill, you are probably a groomer or at least you don’t denounce the grooming of 4-8 year old children. Silence is complicity. This is how it works, Democrats, and I didn’t make the rules.

Foster is just pointing out where that kind of thinking leads.


The WaPo calls attention to books quietly vanishing from school library shelves. Administrators are ignoring the defined processes for dealing with complaints and just pulling books without any process, often over the objections (or without the knowledge) of librarians.

And after the school libraries are purged, they’ll come for the public libraries. Llano County, Texas just fired a librarian for refusing to remove books. KXAN quotes a library patron as saying “There are very clear rules that should be followed with regards to censorship to books in the public library, those rules were not followed.”

and you also might be interested in …

If you missed the Oscars, CODA won as best picture. Here’s a list of all the other winners.


One reason more and more Republicans feel they need to move on from Donald Trump is that he is stuck in the past; he’s still fixated on his crushing defeat in the 2020 election, which he lost by 7 million votes.

Well, this week he moved on from 2020, but in the wrong direction: to 2016. He’s filed a lawsuit in a Florida federal court against, as TPM puts it, “Everyone Who Ever Offended Him Over 2016 Election”.

At the core of Trump’s claim is the idea that Clinton ordered others to spread lies about him regarding Russia and the 2016 election. With Clinton at its head, the argument goes, a vast conspiracy to deprive Trump kicked into action, featuring people and entities that have populated Trump’s rhetoric since before he won in 2016 and, subsequently, right-wing media.

They include Fusion GPS, the opposition research firm that the lawsuit accuses of creating “false and/or misleading dossiers” to damage Trump’s chances in the election.

Jim Comey, the former FBI director, makes the cut to be a defendant, as do FBI officials Peter Strzok and Lisa Page. The DNC and its 2016 chief, Debbie Wasserman Schultz, also show up as defendants.

WaPo’s Phillip Bump points out the most ridiculous aspect of the suit: In order to “prove” that Clinton masterminded a conspiracy to manufacture a Trump/Russia “hoax”, the suit quotes from DNC emails illegally hacked by Russia to benefit the Trump campaign.

Whenever Trump’s 2016 conspiracy theory comes up, I feel obligated to repeat the established facts:

  • Russia did help Trump get elected in 2016.
  • That Russian effort included crimes, such as hacking computers at the DNC, and distributing illegally obtained emails through WikiLeaks during the fall campaign.
  • Trump knew Russia was helping him, to the point of saying in public “Russia, if you’re listening …”.
  • The Trump campaign had two major interfaces with the Russian effort: campaign manager Paul Manafort, who had been paid millions of dollars by Russian oligarch Oleg Derapaska, and long-time Trump ally Roger Stone, who was the campaign’s link to WikiLeaks. Neither man cooperated with the Mueller investigation, and Trump rewarded both of them with pardons.

In view of all that, and the likelihood that Trump would have to answer questions under oath if the suit made it to trial, probably the point is to scam more money out of his followers.


Oh, and they’re still trying to make a thing out of Hunter Biden’s laptop.


Belarus has granted asylum to a man charged in the January 6 insurrection. Putin’s allies consider people who rioted to keep Trump in power after he lost the election to be political prisoners.


In case you were still doubting that Mike Flynn is insane, he buys into the Bill-Gates-wants-to-microchip-you theory. The following picture is not authentic.

https://starecat.com/bill-gates-youre-not-worth-microchipping-change-my-mind/

Vanity Fair has the sordid story of how the conservative Project Veritas obtained Ashley Biden’s diary.


If you ever watched the TV series Heroes, and if you had witnessed the scuffle involving actress Hayden Panettiere Thursday, could you have resisted calling out “Save the cheerleader!”?

and let’s close with some literal interpretation

This Dad assigned his kids the task of writing instructions for making peanut butter and jelly sandwiches. He then followed their instructions as literally as possible, with amusing results.

While I think this exercise taught the kids a valuable lesson, I predict Dad will soon regret having done it, as the kids will start following his instructions literally as well. “You told me to go to school. You didn’t tell me to go inside the school.”

Where Does the Religious Right Go After Roe?

https://politicalcharge.org/2021/09/04/the-weeks-best-cartoons-texas-abortion-ban/

Suppose the Supreme Court reverses Roe v Wade this term. Then what?


The Dobbs case. The Supreme Court has already heard arguments on Dobbs v Jackson Women’s Health Organization, a case centering on a law Mississippi passed in 2018. That law bans all abortions after 15 weeks, in direction violation of the 24-week standard the Court laid out in Roe v Wade in 1973 and affirmed in Planned Parenthood v Casey in 1992. This is the first major abortion case to hit the court since Amy Comey Barrett’s arrival gave conservatives a 6-3 majority. A ruling is expected before the Court’s current term ends in June.

Based on the justices’ general philosophies, and on their comments and questions during the hearing on this case in December, most observers expect the Court to uphold Mississippi’s law. The question is how they will do it: Will the conservative majority leave the framework of Roe and Casey in place, but find a loophole that lets Mississippi’s law stand? Or will it fulfill the decades-old dream of the Religious Right and reverse Roe and Casey outright, essentially declaring that those decisions were mistakes?

If you’ve been following Chief Justice John Roberts over the years, you know that big reversals are not his style, particularly in cases where a majority of the public disagrees, as it does here. Roberts has a partisan Republican agenda, but he likes to keep it just below the public’s radar, and he is wary of sparking a left-wing backlash that could benefit Democrats. The last thing he wants is to make the Court itself a central issue in the 2022 midterms, or to reawaken talk of packing the Court with enough new justices to overcome the conservative majority installed by presidents and Senate majorities that didn’t represent a majority of voters.

So it’s clear which approach Roberts will favor: Don’t make headlines by reversing Roe, but chew away at it by creating a loophole for Mississippi, maybe by changing the definition of “viability”. The language of such a decision could subtly invite states to push the boundary further, until a woman’s right to control her own pregnancy would have little practical meaning. Roe would continue to stand, but like a bombed-out building without walls or a roof, would protect no one.

That probably won’t happen, though, for a simple reason: When Barrett replaced Ruth Bader Ginsburg, Roberts lost control of the Court. He is no longer the swing vote, so he loses 5-4 decisions when he sides with the Court’s three surviving liberals. That’s what happened in September when the Court refused to grant an injunction stopping Texas’ six-week abortion ban from taking effect. The Court did not rule on the validity of the law, so Roe was not overturned. But it refused to enforce Roe, so abortion is effectively banned in Texas for the time being. (And other states are passing similar laws.) Like many observers, I read that refusal to act as a tacit acknowledgement that Roe is doomed: Why should the Court bother to enforce a precedent they’re going to reverse soon anyway?

Justices Alito and Thomas have made no secret of their desire to reverse Roe. The three Trump appointees (Barrett, Kavanaugh, and Gorsuch) all refused to commit themselves during their confirmation hearings. But the conservative movement that backed them intended for them to reverse Roe, and it will feel betrayed if they don’t.

Getting through Senate confirmation tends to encourage boldness that wasn’t apparent during the hearings. In 2018, for example, Brett Kavanaugh convinced swing-vote Senator Susan Collins of his reverence for precedent, which Collins interpreted to mean Roe. But by the time Dobbs was argued last December, Kavanaugh was singing the praises of reversals.

If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Giddeon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.

In each of those cases — and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history — the Court overruled precedent. And it turns out, if the Court in those cases had — had listened, and they were presented in — with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, on West Coast Hotel, adhere to Atkins and adhere to Lochner, and if the Court had done that in those cases, you know, this — the country would be a much different place.

Given that Kavanaugh was the new justice considered most likely to follow Roberts’ lead, sometime in June we can expect a 5-4 decision reversing Roe, as part of a 6-3 decision upholding Mississippi’s law. The Religious Right will erupt in celebration, as a half-century quest reaches a successful conclusion. Like the Ring of Sauron melting into the flames of Mount Doom, Roe will be gone forever.

But what then? Is that the end of the saga, or will there be sequels? Maybe the Religious Right will be like the dog that final catches the car and doesn’t know what to do next. Maybe they’ll hold a victory party and then break up, like a caravan that has crossed the desert and finally reached its destination.

Or maybe not. Maybe the Religious Right and the Court’s conservative radicals still have places to go.

The legal roots and branches of Roe. Conservative rhetoric makes Roe a prime example of “legislating from the bench”. In this way of telling the story, seven justices in 1973 thought a right to abortion was a good idea, even though the Constitution doesn’t mention it. So like a small, un-elected, lifetime-tenured legislature, they voted to establish that right. Of course they had to construct some hocus-pocus argument to hide their usurpation of legislative power, but really they conjured abortion rights out of thin air.

That’s not how it happened. Roe was part of a long process that included several decisions before it and several after, most of which had nothing to do with abortion. And just as Roe wasn’t conjured out of thin air, it can’t vanish in a puff of smoke either. Whatever logic reverses it will have far-reaching consequences that may take decades to play out.

Roe, along with several other important decisions, arises out of an interpretation of the 14th amendment, one of the three post-Civil-War amendments that freed the slaves and defined their place in American society. (A series of terrible 19th-century Supreme Court decisions undercut those amendments, opening the way for the former Confederate states to disenfranchise Black voters and replace slavery with Jim Crow. But that’s a topic for another day.) In particular, the 14th amendment says:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s not hard to figure out what it means to deprive someone of life or property, but lawyers have been arguing ever since about the definitions of liberty and due process. A narrow definition of liberty might just mean staying out of jail; a broad definition might extend to living the way you want to live.

And if some state is telling you that you can’t live the way you want to live, how much process are you due? Maybe due process just means that a state has to dot all its i’s and cross all its t’s before it starts dictating your major life decisions. Or maybe some decisions are so central to a life of liberty that states need really good reasons to interfere in them. And maybe some are so important that a state can’t limit them at all.

The idea that the 14th Amendment’s due process promises more than just a procedural standard is known as substantive due process. Fundamentally, this notion is neither liberal nor conservative. Roe is rooted in substantive due process, but so are arguments against vaccine mandates. (Contra Senator Cornyn, though, Dred Scott was not a substantive due process case.) Conservative courts from the Progressive Era to the early New Deal used substantive due process to throw out liberal reforms like limited work-weeks or a minimum wage: Telling workers they couldn’t work long hours for low wages was seen as such an egregious violation of their liberty that no process was deemed sufficient. (The Court at the time did not appreciate the irony of using an anti-slavery amendment to justify working long hours for low wages. Obviously, those decisions are not in force today.)

The path from the 14th Amendment to Roe goes like this: Substantive due process implies that each person lives inside a sphere of personal liberty, which cannot be violated by governments for any but the most serious reasons, if at all. (Vaccine mandate cases, for example, revolve around whether a pandemic killing almost a million Americans sufficiently justifies invading the personal sphere of anti-vaxxers.)

Prior to Roe, that personal sphere was found (in Skinner) to contain a right to procreate even if the state would like to sterilize you, (in Loving) to include a right to marry someone of any race, and (in Griswold) to encompass a married couple’s right to use birth control. (Justice Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”)

After Roe, the personal sphere grew (in Lawrence) to include the right of consenting adults to choose their own sexual acts, and (in Obergefell) to allow same-sex couples to marry.

In short, Roe doesn’t stand alone. It is part of a web of substantive due process decisions on a variety of issues. Reversing Roe will send ripples through the whole web, putting all those rights up for grabs.

Conservative understand this, and welcome it. This week, at Ketanji Brown Jackson’s confirmation hearing, Senator Cornyn of Texas pushed Jackson to disavow substantive due process entirely.

Justice Jackson, … you’ve suggested that policy making isn’t in your lane and you strive to be apolitical, something I applaud. But why isn’t substantive due process just another way for judges to hide their policy making under the guise of interpreting the Constitution?

He went on to rail against the Obergefell decision on same-sex marriage. And Senator Braun of Indiana had this exchange with the Indianapolis Star:

Question: Would you apply that same basis to something like Loving v. Virginia, the Supreme Court case that legalized interracial marriage?

Answer: When it comes to the issues, you can’t have it both ways. When you want that diversity to shine within our federal system, there are going to be rules and proceedings, they’re going to be out of sync with maybe what other states would do. It’s a beauty of the system, and that’s where the differences among points of view in our 50 states ought to express themselves. And I’m not saying that rule would apply in general depending on the topic, but it should mostly be in general, because it’s hard to have it on issues that you just are interested in when you deny it for others with a different point of view.

Question: So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?

Answer: Yes, I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical.

And Senator Braun is correct: Unless the argument used to reverse Roe is very precise and subtle — and I’ve seen no sign that any of the conservative justices combines the skill and will needed to write such an opinion — it will also be an argument for reversing a long list of rights Americans have come to rely on.

Those rights will not go away immediately when Dobbs is settled in June, but red-state legislatures will recognize the Court’s invitation to pass laws violating them. And once those cases reach the Supreme Court (which may take several years), the conservative bloc will see no option other than to make a decision compatible with their reversal of Roe.

After all, as Brett Kavanaugh explained to Susan Collins, the Court has to respect precedent.

About Those Gas Prices

As someone born into the era of big tail fins and bumpers with breasts, it’s not news to me that we Americans get irrational about our cars.

So of course we also obsess about gas prices. If the rent or the cable bill goes up, we’ll grumble and pay it. If the price of beef skyrockets, we’ll eat more chicken. When there was no toilet paper on the shelves, the most common response was frantic desperation, not anger. But high gas prices bring out the pitchforks and torches: This has to be somebody’s fault, and we’re going to make them pay.

So maybe it’s Biden’s fault or Putin’s or Exxon’s or environmentalists’. Let’s see if we can sort this out, starting from the beginning.

How bad is it? Various commenters had already been talking about “record gas prices” for several weeks, but prices didn’t actually start breaking records until March 7. Even then records were not being broken by much, and only if you didn’t adjust for inflation. In July of 2008, national average gas prices hit $4.11. Cumulative inflation in the last 14 years has been 32%, so gas prices won’t equal 2008 prices in inflation-adjusted dollars unless they hit $5.42. AAA’s current national average price is $4.25.

The price a year ago, when Covid was keeping most people close to home, was an unusually low $2.89. So there’s been a steep increase since then, but not to off-the-charts levels.

Rockets and feathers. The apparent reason for the increase was that the price of oil went up. But oil prices crashed back down this week, and gas prices are still high. (Though they are trending somewhat downward. AAA reports a drop from $4.33 in the last week.) This is the main reason people give when they blame the oil companies for price gouging.

The following chart was on the Trending Economics web site Saturday morning.

So a year ago, the world price of oil was about $60 a barrel. It started creeping upward as economies recovered from the Covid emergency, reaching $90 by late February, when the Ukraine crisis began to get serious. Post-invasion and post-sanctions, it jumped up to $123 on March 8. Then it fell back below $100, and ended last week at $104.70.

The complaint is that gas prices go up immediately when the price of oil rises, but they don’t fall immediately when it drops. This is not your imagination.

The trend is called “rocketing and feathering,” according to oil industry analysts. Gas prices rocket up and then they come down slowly like a feather in the wind.

Think about how this works: Suppose you run oil tankers back and forth between, say, Nigeria and the United States. A trip takes weeks, maybe a month, depending on conditions. So the oil you loaded in Lagos was worth about $90 a barrel, but by the time you get to America, the price has risen to $120. So what do you sell for?

The way a lot of people’s economic intuition works, you ought to sell for $90 plus a reasonable profit on your expenses; say, $93 or $95. (Those numbers are based on several minutes worth of googling, so don’t use them for anything other than illustration.) This way of thinking is called “just price economics“, and it was popular in the Middle Ages.

But the world doesn’t really work that way. Of course you sell for $120, making a $30-a-barrel windfall profit. On other trips you might have windfall losses, so you’d better take the money now.

That’s how rocketing works, all the way up and down the path from oil well to gas pump: Increases get incorporated into the price immediately. Imagine you own a local gas station. Your last delivery arrived when you were selling gas for $3.50 a gallon, so in theory you could still sell for $3.50 and make a profit. But your next delivery is going to cost $4 a gallon. So why would you sell something for $3.50 when it’s going to cost you $4 to replace it?

But now picture what happens when prices fall: You paid $4 a gallon for the gas in your tanks now, so you’re going to be reluctant to sell it for less than that, even if you can replace it for $3.50. You’ll lower your price when you have to, i.e., when the gas station across the street lowers its price.

How fast prices fall depends on how much competition there is. If there are bottlenecks in the market — say, a small number of refineries producing gas for a large region — the businesses that control that bottleneck are in a position to insist on getting at least a just price. And they will. You would too.

The conclusion I draw from all this is that no one in the rocketing-and-feathering scenario is particularly villainous. Price drops would happen faster if markets were more competitive, as in the classic Adam Smith model. But this situation is very different from monopoly pricing, where sellers are only restrained by consumers’ inability or unwillingness to keep paying. (True monopolists don’t need an excuse to raise prices or to keep them high.) Supply-and-demand is working, albeit with a little sluggishness.

A long-term partial solution — nothing would solve it completely — would be more rigorous antitrust enforcement. Short-term, a direct government payment financed by a windfall profits tax would deal with the painful symptoms.

Why is oil so high? Oil is an unusual commodity, because in the short term, neither supply nor demand have much elasticity. An oil field isn’t like a car factory that can run longer shifts, pay overtime, and deliver more cars to the dealers in a matter of days. In the medium term, an oil company can drill more wells, and reopen wells that weren’t economical to run at lower prices. Longer term, it can explore for new oil fields. But none of that increases supply immediately.

Similarly, when the price goes up by 10-20%, you still have to get to work, and you’re probably not going to cancel your vacation plans. Airlines aren’t going to cancel flights. It takes time to arrange a carpool, replace your gas-guzzler with an electric, or move closer to your job.

The result of that lack of elasticity is that oil prices swing more wildly than most commodities. It goes way up and way down because that’s what it takes to change people’s behavior. (Remember what a market price is: The price at which buyers want the exact quantity that sellers are offering. So price moves that don’t cause people to enter or leave the market aren’t big enough.) So when demand crashed at the beginning of the Covid lockdowns, the price on the most volatile oil markets briefly went negative. (Imagine the grocery paying you to take away their excess milk.) Here’s the 25-year version of the graph above.

Not a lot of other prices relevant to your life went up 7 times between 2002 and 2008, only to crash all the way back by 2020.

I learn a few things from this graph.

  • If you just look at the 2020-2022 part, the price is skyrocketing. But if you take a longer view, you see a lot of zigging and zagging within a wide range. It’s a mistake to imagine that the Covid-lockdown price of $20 was “normal”.
  • I’m not surprised that oil production doesn’t instantly ramp up in response to a high price. If I’m deciding whether to drill a well that I expect to be productive over 5-10 years, how can I be sure the price won’t be much lower for most of that time?
  • The price increase didn’t start with the Ukraine War. Oil prices went up because the world economy was recovering (and speculators anticipated further recovery). The effect of war and sanctions sits on top of that rise.

Is Biden to blame? Mostly no, but there are hooks you can hang that argument on if you really want to.

First, there’s inflation in general. Like many other governments, the US policy response to the Covid lockdowns focused on avoiding a depression, which was a real possibility. So the Federal Reserve pumped a lot of money into the economy, and the government distributed money directly to individuals and businesses. Both policies started under Trump, but Biden continued and even increased the depression-avoiding spending with his American Rescue Plan.

Two consequences come out of that: the intended one of keeping the economy afloat, and the unintended (but somewhat expected) one of inflation. So unemployment is now at 3.8%, down from 6% a year ago and 15% two years ago. It’s close to the pre-Covid 3.5% that Trump claimed as evidence of “the greatest economy ever”.

The price of those jobs is inflation, which was up to 7.9% before the Ukraine invasion and the sanctions against Russia. Personally, I think that’s a price worth paying. But other people may disagree, and many more will argue in bad faith, criticizing Biden for the inflation without crediting him for the jobs.

Second, we come to the sanctions, which again are a trade-off. Getting Russian oil off the market leaves a production gap, which raises prices. I don’t have a good explanation for why oil has almost returned to its pre-invasion level, but I wouldn’t count on it to stay there.

It’s possible that a President Trump might have been able to call his good buddy MBS and get the Saudis to produce more to make up the gap. (Of course he won’t do that now, because a larger oil supply would just benefit America, and not Trump personally.) Other possible sources of increased oil production would be the other sanctioned countries: Iran and Venezuela. (Iranian oil might not be sanctioned at all if Trump hadn’t scrapped the Iranian nuclear deal.) But none of that has worked out either.

Finally, there’s the question of American production. And here is where the case against Biden is flimsiest. The accusation is that American oil production would be much higher if Biden weren’t so hostile to the oil industry. If he had only kept building the Keystone XL pipeline, or opened more federal land to drilling, or not rejoined the Paris Climate Accord, or maybe had just smiled more at oil executives — then we’d have so much production the world wouldn’t need Russia.

This is nonsense, and I can’t explain it any better than Jen Psaki did.

  • Keystone XL wouldn’t be operating yet anyway. It wasn’t scheduled to open until 2023.
  • Pipelines don’t produce oil, they just move it. The Canadian oil Keystone XL would move is getting to market by other means.
  • Psaki claimed (and I have no way of checking) that the oil companies have 9,000 unused drilling permits. It’s not that they have nowhere to drill.
  • US production went down when the price of oil went down, but it is ramping back up. Next year the US should produce more oil than ever before.

Some of the points here are related to the next blame-object, environmentalists.

Are environmentalists to blame? As Fox News reporter Peter Doocy put it (in a question to Psaki): “How high would [gas prices] have to get before President Biden would say ‘I’m going to set aside my ambitious climate goals and just increase domestic oil production, get the producers to drill more here, and we can address the fossil fuel future later’?”

The unstated assumption behind that question is that climate change isn’t really that big a deal. Global warming is the liberal version of made-up conservative issues like critical race theory and cancel culture. So in the face of a real threat like Russia, and a real consequence like $4 gas, why can’t liberals just get off it?

But the vast consensus of scientists who study this issue is that climate change is a big deal, and will have catastrophic consequences (some of which are already apparent) if humanity continues to burn fossil fuels at an ever-increasing rate. There will always be competing problems that present more obvious short-term dangers. If we let those problems delay action on climate issues, we will never take action, with dire results.

Breathing is more of a short-term necessity than eating, but if we are to survive, we must envision a future where we can do both. In the same way, we have to find a path into the future where we deal with both aggressive autocrats and climate change.

Right now, Germany’s decision to close its nuclear plants makes it more dependent on Russian natural gas. (The proper role of nuclear power in limiting carbon emissions is a debatable issue that I haven’t studied.) That choice has certainly made the current situation more difficult.

But in a longer view, the faster we get to a sustainable-energy future, the less dependent we will be on fossil-fuel exporting countries, many of whose governments are repugnant. The price of wind energy has not increased at all in the last few months, and Vladimir Putin cannot affect it.

https://jensorensen.com/2022/03/16/gas-prices-giant-truck-suv-ev-cartoon/

In conclusion, higher gas prices have two main causes: The general inflation that comes from choosing to stimulate job creation as we come out of the Covid economic downturn, and the reduced supply of oil as Russian oil is pushed off the market. Those are both policy decisions that were made for good reasons.

Other Biden decisions, like canceling the Keystone XL pipeline, have had little to no effect. Anything the US government could do now to stimulate oil production wouldn’t produce results for many months or even years. Meanwhile, market forces are raising US oil production without any new government encouragement.

Oil companies are gaining windfall profits as the price of oil rises, but I don’t see anything sinister going on there. They could altruistically decide to charge less, but none of the rest of us do that. If those profits are a problem, they could be taxed.

And in the long run, the pain caused by the current high gas prices is one more reminder that we need to become less dependent on fossil fuels. Trying to get out of the present crisis by finding more oil somewhere is just trading one problem for another.