I suspect each phase of the continuing dismantling of America begins with “In a 6-to-3 vote the U.S. Supreme Court decided …”
3 July 2024 (Washington, DC) – – The annual term of the U.S. Supreme Court begins, by statute, on the first Monday in October. Court sessions continue until late June the following year. The Term is divided between “sittings,” when the Justices hear cases and deliver opinions, and intervening “recesses,” when they consider the business before the Court and write opinions. Sittings and recesses alternate at approximately two-week intervals.
But it is the month of June on which legal analysts focus – the issuing of final opinions on the major cases the Court has heard that past year. Which all used to be pretty much a “ho-hum” affairs. But now it has become a nail-biting month, with most end-of-term decisions consistently transforming key areas of U.S. public life.
This year was no exception. The court itself had a volatile term, taking on a stunning array of major disputes and assuming a commanding role in shaping American society and democracy. If the justices felt chastened by the backlash over their past decisions, and the persistent questions about their ethical standards, and the drop in their public approval, there were only glimmers of restraint. The 6 rightwing justices who command a supermajority on the nine-seat bench have pushed the limits of constitutional law in the pursuit of their ideological goals.
Donald Trump had a very good year at the Supreme Court:
• On Monday, the court ruled that he is substantially immune from prosecution on charges that he tried to subvert the 2020 election
• On Friday, the court cast doubt on two of the four charges against him in what remains of that prosecution
• And in March, the justices allowed him to seek another term despite a constitutional provision barring insurrectionists from holding office.
Administrative agencies had a horrible term. In three 6-to-3 rulings along ideological lines, the court’s conservative supermajority:
• erased a foundational precedent that had required courts to defer to agency expertise
• dramatically lengthened the time available to challenge agencies’ actions
• torpedoed the administrative tribunals in which the Securities and Exchange Commission brings enforcement actions
And there were lopsided rulings in other major cases:
•letting abortion pills remain widely available
• allowing the government to disarm domestic abusers
• endorsing the National Rifle Association’s First Amendment rights
• rejecting a challenge to the Consumer Financial Protection Bureau
Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said it was a banner year in an other area, too. Even when the justices agreed, they very often could not find consensus on the rationale. They issued concurring opinions at a record rate, the highest since at least 1937, and probably ever.
And, he said, there are signs of growing dysfunction among the justices. The court is taking an extraordinarily small number of cases, and taking an extraordinarily long time to decide them. And the justices are writing more and more individual opinions to express their own views. This is especially pronounced on the right side of the court and has to create some friction among the justices. But it remains an extraordinarily polarized court.
And Chief Justice Roberts has finally given up. Two years ago he tried to estrange himself from the court’s hard right, trying to bolster the notion that he must repair the shaky legitimacy of the court itself for the longer haul. That was most important.
Nope. Forgotten. Ramming through a conservative judicial program is the most important thing. He assigned himself an unusually large proportion of the term’s majority opinions in the biggest cases, the ones transforming the biggest key areas of U.S. public life, including the ones on Trump’s immunity from prosecution, the January 6th prosecutions, the Second Amendment, and the Chevron doctrine and administrative tribunals.
There are yottabytes being written on how to make sense of these most recent set of decisions. Are they as bad as they seem? Yes, they are. I have read that “America’s democracy is in more danger now than Americans yet really think”, and “This is what happens you dally with fanaticism”. Yes, so American democracy is now toying with regression of an advanced, severe, almost surreal kind. These decisions are smoking, colossal wrecking balls to centuries of progress.
So it is now bizarre that Americans celebrate their democracy, their Independence Day, on the weekend following the Supreme Court’s release of these colossal wrecking balls.
I have some thoughts on the Court’s opinions but not for this post. Besides the Trump immunity case, I think the most important one is Loper Bright Enterprises which overturned the Chevron rule, which meant courts must defer to federal agencies when there were disputes over how to interpret laws passed by Congress. That rule is now out the window. This will have massive implications for multiple industries, but especially the tech industry in which many of my readers work and follow.
But all of that pales in significance when you see the “Big Picture”. America is in the process of its “Second Revolution”, which will remain bloodless, if the left allows it to be. This is actual, open treason and a death threat from the Fourth Reich. There is nothing “neo” about these Nazis. And that is exactly what they are. This is seditious conspiracy. But we’re crying about Biden’s age and talking about Stormy Daniels. It’s literal insanity. Some brief thoughts from my longer essay in progress.
In this U.S. independence “celebration” period, let’s take a broader look at American *democracy*, and American history. Because I think the decision by Europeans to colonize what we now know today as North America is perhaps the most disruptive action that the human race has ever undertaken, just given America and its history.
As a writer, as a journalist, you need to try and see beyond the immediate cycles of news. And that’s a real challenge. All of the current stories that seem to have led the news over the past two years – the U.S. Supreme Court decisions, political fracture in Europe and the U.S., COVID rising (again), supply chain disruption (again), economies running amok, now the blistering wars in Gaza and Ukraine – it all boggles the mind. To take any one of them seriously is to believe that the direction they point is the direction we will go, that we stand on the cusp of a future far, far different from our past.
And I do believe that. We are going to break new ground here. In this, George Orwell had it right: “To see what is in front of one’s nose needs a constant struggle”.
I had watched a lot of the January 6th Capitol “attempted coup” hearings, and I even read the entire 385 page final report. Plus I have seen the bizarre political machinations in Arizona and Florida and Texas and Tennessee and Virginia. It seems to me this is a weirder moment in America than we think.
It is an almost Olympian refusal to confront the present. So many people have told me it is “so unlikely that the American political system collapses“.
But . it . is . collapsing. Right . now. And that is because few see or study America’s well-established, long term trends.
It’s why when I have done any deep reading into American history I keep coming back to the diaries of John Adams who wrote when describing the First Continental Congress convened in 1774: “Delegates were strangers, unfamiliar with each other’s ideas and experiences and diversity of opinion. There was no unity of political beliefs. We have several nations, not one”.
It is why I think we need to stop talking about “red” and “blue” America. What we have, really, is two blocs of fundamentally different nations uneasily sharing the same geographic space. When we think about the United States, we make the essential error of imagining it as a single nation, a marbled mix of Red and Blue people.
But in truth, it has never been one nation. More like a federated republic of two nations. To borrow from an upcoming book by Michael Podhorzer: what we have is a “Blue Nation” and “Red Nation”. This is not a metaphor; it is a geographic and historical reality.
Michael Podhorzer, a longtime political strategist for labor unions and the chair of the Analyst Institute of which I am a member, puts out a private newsletter for a very small group. He recently laid out a detailed case for thinking of these two blocs as fundamentally different nations uneasily sharing the same geographic space.
To Podhorzer, the growing divisions between red and blue states represent a reversion to the lines of separation through much of the nation’s history. The differences among states in the Donald Trump era, he writes, are “very similar, both geographically and culturally, to the divides between the Union and the Confederacy. And those dividing lines were largely set at the nation’s founding, when slave states and free states forged an uneasy alliance to become ‘one nation’ – but never became one nation”.
Podhorzer isn’t predicting another civil war, exactly. But he’s warning that the pressure on the country’s fundamental cohesion is likely to continue ratcheting up in the 2020s. It is a multipronged, fundamentally antidemocratic movement that has built a solidifying base of institutional support through conservative media networks, evangelical churches, wealthy Republican donors, GOP elected officials, paramilitary white-nationalist groups, and a mass public following. And it is determined to impose its policy and social vision on the entire country — with or without majority support.
This is not an entirely new thought. As I have noted in many previous posts, scores of serious writers – most especially Lewis Lapham and George Packer – have laid out in detail, over the last 25 years, the structural attacks on U.S. institutions which paved the way for Trump’s candidacy and will continue to progress, with or without Trump at the helm. They pretty much predicted exactly where we are today.
But I was comforted (if that is the appropriate word) to find out he and I were on the same page as to what was causing the enormous strain on the country’s ripped and mythical cohesion: “Trumpian” electoral dominance of the red states, the small-state bias in the Electoral College and the Senate, and the GOP-appointed majority on the Supreme Court to impose its economic and social model on the entire nation—with or without majority public support.
As measured on various fronts including the January 6th insurrection, the procession of Republican election deniers grabbing offices have provided them with control over the 2024 electoral machinery, and the systematic advance of a Republican agenda by the Supreme Court, the underlying political question of the 2020s remains whether majority rule – and democracy as we’ve known it – can survive this offensive.
Politico had a long piece that defined modern red and blue America as the states in which each party has usually held unified control of the governorship and state legislature in recent years. By that yardstick, there are 25 red states, 17 blue states, and eight purple states, where state-government control has typically been divided. Measured that way, the red nation houses slightly more of the country’s eligible voting population (45 percent versus 39 percent), but the blue nation contributes more of the total U.S. gross national product: 46 percent versus 40 percent. On its own, the blue nation would be the world’s second-largest economy, trailing only China. The red nation would rank third.
Podhorzer offers a slightly different grouping of the states that reflects the more recent trend in which Virginia has voted like a blue state at the presidential level, and Arizona and Georgia have moved from red to purple. With these three states shifted into those categories, the two “nations” are almost equal in eligible voting-age population, and the blue advantage in GDP roughly doubles, with the blue section contributing 48 percent and the red just 35 percent.
All of that has led to the flurry of socially conservative laws that red states have passed since 2021, on issues such as abortion; classroom discussions of race, gender, and sexual orientation; and LGBTQ rights, is widening this split.
No Democratic-controlled state has passed any of those measures.
Not raised by Podhorzer but critical (I think) in understanding how far this will go is by looking at the experience of Jim Crow segregation – an important reference point for understanding how far red states might take this movement to roll back civil rights and liberties. Not that they literally would seek to restore segregation, but recent red state rhetoric (it is impossible to name all the conservative leaders that espouse this) is that that they are comfortable with “a time when states had entirely different laws” that they created a form of domestic apartheid. As the distance widens between the two sections, there are all kinds of potential for really deep disruptions, social disruptions, that aren’t just about our feelings and our opinions.
The Supreme Court decisions two terms ago that effectively ending race-conscious admission programs at colleges and universities, and the decision in favor of a Christian web designer in Colorado to refuse work based on religious objections, both had far-reaching impact on other minority groups and they have opened the door to a slew of cases seeking to further chip away at civil rights protections in the US. across the country.
And if you read my essay from 2016, the growing separation means that after the period of fading distinctions, bedrock differences dating back to the country’s founding are resurfacing. And one crucial element of that is the return of what Podhorzer calls “one-party rule in the red nation.”
Jake Grumbach, a University of Washington political scientist who studies the differences among states and who will publish a long piece this coming fall, details how conservative Republicans have skewed the playing field to achieve a level of political dominance in the red nation far beyond its level of popular support. Undergirding that advantage, he argues, are laws that make registering or voting in many of the red states more difficult, and severe gerrymanders that have allowed Republicans to virtually lock in indefinite control of many state legislatures, and at least 10 new Congressional seats. He says “they have really stacked the deck in these states because of this democratic backsliding”.
The core question that Podhorzer’s analysis raises is how the United States will function with two sections that are moving so far apart.
I’ll close this section with this:
It’s clear the Trump-era Republicans installing the policy priorities of their preponderantly white and Christian coalition across the red states will not be satisfied with just setting the rules in the places now under their control. The MAGA movement’s long-term goal is to tilt the electoral rules in enough states to make winning Congress or the White House almost impossible for Democrats. Then, with support from the GOP-appointed majority on the Supreme Court, Republicans could impose red-state values and programs nationwide, even if most Americans oppose them.
Or as Podhorzer concludes his piece: “The MAGA movement is not stopping at the borders of the states it already controls. It seeks to conquer as much territory as possible by any means possible”.
The Fourth of July in the U.S. is usually a day of community, celebration, and joy. It is the country’s national birthday party – the commemoration of a Declaration of Independence that changed “the course of human events.” It is a day of star-spangled banners and national pride – and of course the requisite hot dogs, fireworks, and parades.
But today, this year, the unity of that nation, its destiny, its self-confidence, the self-evidence of its truths are being pulled apart by forces of such strength that many wonder whether that nation, “so conceived and so dedicated, can long endure.” Is there reason to celebrate this Fourth, or is a more fitting response to mourn what once was and what is currently in jeopardy?
This last U.S. Supreme Court term will be remembered as the moment a cynical and anti-democratic movement, decades in the making, reached its zenith, empowered by bad faith and opportunism. Now the cabal lords its power over a broken political system from a perch of increased influence and lack of accountability. This is power politics by unelected actors, appointed largely by men who lost the popular vote for president. Its path was proudly paved by Mitch McConnell’s Machiavellian exploitation of the deaths of two justices. He was a master of shamelessness with a single purpose – to accomplish via judicial appointment what he could never have achieved through democratic means.
What we have are the ruins of what many took for granted as our constitutional rights. And nothing suggests these justices are anywhere near sated.
And the obvious. The justices tried very hard, for a very long time, to cultivate a perception that they existed on an elevated, erudite plane far above the petty concerns that occupy elected politicians. They said the court’s work was wholly separate from considerations like public opinion. Even when they had to take up a case with political implications, they approached it only as a question of legal scholarship, not sullied by ideology or policy preferences.
That image is all but dead.
When history looks back on the term that just ended, what stands out the most may not be any one ruling, but rather its place in the trend — long-simmering, but quickly accelerating — toward seeing the court for what it is: the single most powerful weapon in U.S. politics. At every turn, the court looks more like run-of-the-mill, outcomes-driven, raw-power politics.
You can even see it in the court’s writing. The last term’s rulings were highly charged and highly personal — a far cry from dispassionate legal interpretation. The dissents were bristling.
And reality check: the court hasn’t just become political. An institution with this much power to decide inherently political issues — from presidential immunity to voting rights to administrative law to campaign law to matters of life and death, what the federal government can and can’t do, limits of the First Amendment, even who gets to be president — is, and has always been, a political institution. Perception is finally catching up to that reality.
But relax. Tomorrow, celebrate with the Americans … and go out and have a beer and eat a hotdog.