“Delivering The Promised Conservative Paradise?”: The Supreme Court Is Poised To Deliver Conservatives A String Of Big Victories
The Supreme Court’s new term begins today, and it brings with it a paradox. On one hand, the Court is poised to deliver conservatives a string of sweeping, consequential victories on issues covering a wide swath of American life. On the other, conservatives are up in arms about how they’ve been betrayed by the Court, and particularly by Chief Justice John Roberts, despite the fact that Roberts has in all but a couple of cases been as reliable a conservative vote as they could have hoped for.
Let’s look at what’s coming. Among the cases the Court will be hearing are an affirmative action case involving the University of Texas, a case asking whether congressional districts must adhere to a “one person, one vote” standard, a case testing state restrictions meant to shut down abortion clinics, a case asking whether public-sector unions can require non-members who benefit from their collective bargaining to contribute to those efforts, and yet another lawsuit challenging the Affordable Care Act’s contraception provision.
While a couple of them may be in doubt, it’s entirely possible that by the time this term ends next June, the Court will have driven the final stake into affirmative action, struck a fatal blow against public-sector unions, enhanced Republican power in legislatures by reducing the representation of areas with large Hispanic populations, given a green light for Republican-run states to make abortions all but impossible to obtain, and undermined the ACA. Even if one or two of those don’t go how Court observers expect, it’s almost certainly going to be a great term for Republicans.
And while they’ve had a couple of recent high-profile defeats at the Court, conservatives have enjoyed a conservative majority for a couple of decades now. Yes, Anthony Kennedy sometimes joins with liberals, as he did in the case legalizing same-sex marriage. But just in the last few years, they’ve seen the doors of campaign finance thrown open to unlimited spending by corporations and billionaires; the Voting Rights Act gutted; affirmative action all but outlawed; an individual right to own guns created for the first time in American history; corporations granted religious rights to exempt themselves from laws they don’t like and sectarian prayer allowed at government meetings; unions undermined and employment discrimination suits made more difficult; and a whole series of less well-known decisions that enhance the power of the powerful, whether it’s the government or corporations.
Nevertheless, when you hear conservatives talk about the Court, they don’t say, “We need to make sure we get more conservative justices to keep winning.” Instead, they say, “We’ve been betrayed!” So what’s going on?
There are a couple of answers. The first is that they’re demanding not just a record of wins, but absolute perfection. They want not justices who will bring a conservative philosophy to the Court, but justices who will never stray from whatever it is the Republican Party wants at a particular time. The recent decision in King v. Burwell is a perfect example: the lawsuit itself was a joke, based on a series of claims about the Affordable Care Act that ran from the clearly false to the laughably ridiculous. When John Roberts sided with the majority to dismiss it — despite a long record of being on the “right” side of all the cases I mentioned above, plus many more — they declared him to be an irredeemable traitor.
The second reason is that narratives of betrayal are central to how conservatives understand history. Whenever events don’t turn out as they would like, whether it’s a foreign war or a lost election or a societal evolution, the story is always the same: We were betrayed, either by our opponents or by the people we thought were our allies. Was the Iraq War a terrible idea? No, we had it won — until Barack Obama betrayed us by pulling out. Why was George W. Bush so unpopular? Because he betrayed conservative principles by not cutting spending more, just like his father betrayed us by raising taxes (while the younger Bush was still president, longtime conservative activist Richard Viguerie wrote a book entitled “Conservatives Betrayed: How George W. Bush and Other Big-Government Republicans Hijacked the Conservative Cause).” As Digby memorably wrote, “Conservatism cannot fail, it can only be failed. (And a conservative can only fail because he is too liberal.)” And it goes back as far as you want. Why did the Soviet Union come to dominate Eastern Europe? Because FDR betrayed us at Yalta.
It isn’t that there’s never any truth in this story, particularly when it comes to the Court. David Souter, for instance, turned out to be a genuine liberal, not at all what Republicans expected when he was appointed by George H. W. Bush. But they’ve gotten so used to the betrayal narrative that they place even a single setback into it. Which may explain why conservative opinions of the Court have changed so dramatically in recent years. According to Pew polls, in 2008, 80 percent of Republicans approved of the Supreme Court, compared to 64 percent of Democrats. By 2015, the views of Democrats hadn’t changed — their approval was at 62 percent. But Republican approval had fallen to 33 percent, despite all they had won at the Court over that time. A full 68 percent of conservative Republicans call the Court “liberal,” an idea that is absurd by any objective measure, but one that is regularly fed by conservative media and Republican politicians.
To be clear, Republicans are right to focus on the Supreme Court during the campaign, and Democrats ought to as well. As I’ve argued before, there may be no single issue more consequential for America’s future in this election than what will happen to the Supreme Court in the next four or eight years. But Republicans aren’t just arguing that it’s important for them to elect a Republican so they can get friendly justices, they’re arguing that even Republican presidents and Republican-appointed justices can’t be trusted not to turn into judicial Benedict Arnolds.
If you’re someone like Ted Cruz, this idea fits in nicely with the rest of your message, at least during the primaries: the real enemy isn’t the Democrats, it’s the feckless and unreliable Republican establishment that has failed to deliver the conservative paradise we were promised. Which is why no one is louder in condemning Roberts than Cruz (who supported Roberts wholeheartedly when he was nominated). But I wonder, will they change their tune when the Court gives them one victory after another over the next nine months?
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line, The Washington Post, October 6, 2015
“Hispanic Jeb vs Identity Politics”: The Most Damaging Gaffes Are The Ones That Reinforce A Preexisting Narrative
In case you haven’t heard, the New York Times is reporting that, ”In a 2009 voter-registration application, obtained from the Miami-Dade County Elections Department, Mr. Bush marked Hispanic in the field labeled ‘race/ethnicity.’”
Native American Elizabeth Warren, meet Hispanic ¡Jeb!
What with all the serous news in Iran and Indiana, this might seem like a silly thing to talk about. Team Bush has responded to the story, and – based on this Tweet from Jeb Bush, Jr. (which his dad Re-Tweeted) – the strategy appears to be to try to downplay the story by poking fun at it.
That might be there best hope, because there is potential this could turn into a big deal, electorally speaking. That’s because this kind of symbolic thing is easy to mock (see Elizabeth Warren) — and easier to understand — than some policy proposal.
The most damaging gaffes are the ones that reinforce a preexisting narrative about someone. A very vocal and activist segment of the Republican primary base is vehemently opposed to anything that looks like “amnesty,” and Jeb’s support for immigration reform already has him in hot water with this contingent of the GOP. This latest revelation is amnesty on steroids. It personalizes what was, heretofore, a policy story. Bush can now be portrayed as someone who has “gone native” with the amnesty gang, and is no longer “one of us.”
When Sen. Marco Rubio was pushing immigration reform, buttons started popping up branding him a “RINO” who wants “AMNISTIA.” The fact that these buttons looked similar to a Mexican flag, and featured Rubio wearing a sombrero, only added to the subtlety. Already, the New York Times and The Week (where I also write) have associated photos with stories about this topic showing Bush surrounded by mariachi bands and/or men wearing sombreros. Those are the mainstream outlets. Wait till the blogs get hold of this. (And don’t get me started on talk radio…)
Unless this gets fixed, the conservative base (which is decidedly and passionately opposed to immigration reform, and already hostile to Bush) will use this as a cudgel to relentlessly mock and attack Bush.
To a certain extent, they have a point: Bush’s cultural experience is far different from that of most Americans. I have no idea why he checked that box, but it is reasonable to say he’s married to a Latina, his kids are Hispanic, and he lives in an area where he can probably go till lunch before speaking anything other than Spanish. This is not to say he’s un-American, but it is to say he’s international and cosmopolitan, and really, to a lot of folks, that’s pretty much a distinction without a difference.
In reality, though, the difference is huge. As noted earlier, there will be comparisons to Sen. Warren. But Elizabeth Warren presumably benefited from her bogus Native American status. Bush had nothing to gain (and as it turns out, a lot to lose) by identifying as Hispanic.
Jeb’s political ideology is such that he doesn’t think anyone should benefit from identity politics — that merit, not ethnicity, is what should matter. Liberals like Warren believe that certain minority groups should get preferential treatment; Jeb, as a conservative, does not, and as such it doesn’t really matter what ethnicity he chooses to identify as. Heck, as Florida governor, Bush even went so far as to end affirmative action in the state.
As the New York Times reported in 2000:
“There is widespread support among whites for Mr. Bush’s program, which would end preferences for businesses owned by women and minorities in bidding for state contracts. And it would end college admissions preferences based on race, substituting a program guaranteeing admission to at least 1 of the 10 state universities for high school students who graduate in the top 20 percent of their class.”
Bush is wise to try and diffuse this with humor, but only time will tell if that works. This could still be politically damaging. But that doesn’t mean it should be. Jeb’s WASPy family background only makes this story more delicious, but practically speaking, he probably is culturally Hispanic, and of course there’s nothing wrong with that. What we should be interested in is the fact that, as governor, he supported conservative policies, and has a long history of rejecting identity politics. For that, at least, we should be saying ¡Viva Jeb!
By: Matt Lewis, The Daily Beast, April 6, 2015
“Why We Can’t Educate Racism Away”: At Its Root, Racism Is A Structural Problem
How prejudiced are Americans? The internet knows. Whether it’s racism, sexism, cissexism, transphobia, classism, sizeism, or ableism, online residents are watching out for it and pointing it out at tremendous volume. Whole tumblrs are dedicated to meticulously cataloging the prejudiced histories of famous people.
While often useful and necessary, this strategy comes up short. The idea is that by “calling out” individual acts of oppression, we can raise awareness about the myriad subtle ways that prejudice manifests itself. The citizenry, better educated, will adjust its behaviors.
The problem is that white people, our dominant and most privileged socioeconomic group, tend to resist these critiques. In the case of racism, they are the ones who benefit from prejudice, and they squirm out of this stigma in increasingly interesting ways. How? These days, by loudly agreeing with those critiques, thereby signaling that they are meant for other, bad white people.
Think of the guy in critical theory class who embraces radical feminist authors extra-fervently in a bid to escape his own implication in the patriarchy. This bit of political jujitsu is rather “like buying an indulgence,” as Reihan Salam put it at Slate.
One might respond that the answer is improved self-knowledge, greater humility, and more self-flagellation on the part of the privileged (see: #CrimingWhileWhite). Sure. But the problem is that there is no possible demonstration of prejudice and privilege that cannot also be appropriated by white people in the service of demonstrating the purity of their own views, resulting in an endless vortex of uncomfortable, obnoxious earnestness. Being a Not-Racist these days is getting very subtle indeed.
But there’s another approach that is both simpler and far more difficult. Instead of focusing on individual guilt and innocence, the socioeconomic structure that undergirds racism can get equal or greater billing. If educating the privileged has reached a point of diminishing returns, then attacking racist outcomes with structural policy can make that education unnecessary.
Now, it should be noted that any individual instance of calling out prejudice is surely harmless and heartfelt. It should further be noted that many if not most anti-prejudice activists share these structural goals. The problem is a question of emphasis. Prejudiced words tend to get 10 times more attention than racist acts and structures. For example, Donald Sterling was hounded mercilessly for his racist comments, but largely ignored for his concretely racist actions as a landlord.
And the problems America faces go far beyond one rotten rich person. There’s the prison-industrial complex. The stupendous wealth and income gap between black and white. The fact that the police randomly gun down unarmed black men and boys on a regular basis. That’s just for starters — and it’s getting worse, not better.
Working on those problems is going to take a massive nationwide policy effort. Prison and sentencing reform, ending the drug war, overhauling American policing, and implementing quota-based affirmative action would be a good start. In particular, there is a good case for class to take center stage in any anti-prejudice effort. Nearly all racist oppression is heavily mediated through economic structures and worsened by endemic poverty.
More importantly, income differences and poverty are easy problems to fix policy-wise. (Fixing American police is a hellish problem and I have no idea where to start.) But a lack of money can be bridged with simple income transfers, from the rich to the poor.
All of this is very hard lift politically, of course. But substantive politics is the best way to get past people’s nearly infinite capacity for self-exculpation. If the root of racism is in our structures, then structural policy should be the solution.
By: Ryan Cooper, The Week, December 25, 2014
“More Consequential And Far-Reaching”: Why The Supreme Court Should Be The Biggest Issue Of The 2016 Campaign
Supreme Court justice and pop culture icon Ruth Bader Ginsburg left the hospital yesterday after having a heart stent implanted and expects to be back at work Monday. Despite various health issues over the years, Ginsburg insists that she is still of sound body at age 81 (her mind isn’t in question) and has no plans to retire before the end of President Obama’s term to ensure a Democratic replacement. If she keeps to that pledge, and presuming there are no other retirements in the next two years, the makeup of the Supreme Court could be a bigger campaign issue in 2016 than ever before. It certainly ought to be.
Ordinarily, the Supreme Court is brought up almost as an afterthought in presidential campaigns. The potential for a swing in the court is used to motivate activists to volunteer and work hard, and the candidates usually have to answer a debate question or two about it, which they do in utterly predictable ways (“I’m just going to look for the best person for the job”). We don’t usually spend a great deal of time talking about what a change in the court is likely to mean. But the next president is highly likely to have the chance to engineer a swing in the court. The consequences for Americans’ lives will probably be more consequential and far-reaching than any other issue the candidates will be arguing about.
As much as we’ve debated Supreme Court cases in recent years, we haven’t given much attention to the idea of a shift in the court’s ideology because for so long the court has been essentially the same: divided 5-4, with conservatives having the advantage yet liberals winning the occasional significant victory when a swing justice moves to their side. And though a couple of recent confirmations have sparked controversy (Samuel Alito and Sonia Sotomayor were both the target of failed attempts to derail their nominations), all of the retirements in the last three presidencies were of justices from the same general ideology as the sitting president. The last time a new justice was radically different from the outgoing one was when Clarence Thomas replaced Thurgood Marshall — 23 years ago.
Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.
Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.
Look at what the Supreme Court has done recently. It gutted the Voting Rights Act, said that corporations could have religious beliefs, simultaneously upheld and hobbled the Affordable Care Act, struck down a key part of the Defense of Marriage Act and moved toward legalizing same-sex marriage, all but outlawed affirmative action, gave corporations and wealthy individuals the ability to dominate elections and created an individual right to own guns — and that’s just in the last few years.
Whether you’re a Democrat or a Republican, there is probably no single issue you ought to be more concerned about in the 2016 campaign than what the court will look like after the next president gets the opportunity to make an appointment or two. The implications are enormous. It’s not too early to start considering them.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 28, 2014
“Just Something To Think About”: 15 Major Decisions This Year From A Partisan Supreme Court
Since Monday’s dramatic Supreme Court decisions, I’ve seen a few people recall that back in 2000, a lot of liberals justified voting for Ralph Nader (or not voting at all) on the basis that there wasn’t a dime’s worth of difference between George W. Bush and Al Gore. Bush appointed John Roberts and Samuel Alito to the high court, and it’s safe to say that Gore’s nominees would have been somewhat different, so it’s unlikely we’ll be hearing that argument again. Wherever you place your priorities in terms of the actions of the executive branch, at this point in history, the nominating of Supreme Court justices has become extremely partisan, in a way that isn’t necessarily bad.
What I mean is that whatever the preferences of a particular president, his or her nominee will have to fit within a predictable mold set by the president’s party. For Republicans, that probably means someone who served in a previous Republican president’s Justice Department (as both Roberts and Alito did in Reagan’s), is a member of the Federalist Society, may have done some corporate work on the side, and spent a few years issuing safely conservative rulings on an appellate court. For Democrats, it probably means someone who is an academic (like Elena Kagan), or if not, someone whose record on the bench gives a clear indication of their leanings (like Sonia Sotomayor)—and is more likely to be a woman or a member of a racial or ethnic minority.
As George W. Bush found out when he tried to nominate his good buddy Harriet Miers, the president’s party won’t tolerate someone without a clear record—they want to be sure that they’ll get exactly what they expect from a justice. That means that there will be no surprises for anybody (not that people can’t be fooled a little bit; with a friendly smile, a soothing voice, and some patently disingenuous baseball metaphors, John Roberts convinced a lot of Democrats he might be something other than the intensely ideological justice he has been).
As I said, this isn’t necessarily bad; a justice like David Souter who surprises everyone is only pleasing if the surprise works to your side’s benefit. But now that the Supreme Court’s term has ended in dramatic fashion, it’s worth taking a moment to look back on what they did over the past year, in case anyone is harboring any lingering doubts about the importance of the Court. Here are some of the major decisions, and a quick glance at them shows just how much impact the Supreme Court has on all of our lives:
- McCutcheon v. FEC: The law limiting the total amount a donor can give to multiple political candidates was struck down.
- Schuette v. Coalition to Defend Affirmative Action: Michigan’s law banning affirmative action at state universities is constitutional.
- EPA v. EME Homer City Generation: The EPA’s rules curtailing air pollution that travels from one state to another are constitutional.
- Greece, NY v. Galloway: Local officials can open public meetings with sectarian prayers.
- Hall v. Florida: Florida’s rule that anyone with an IQ over 70 can be executed is unconstitutional.
- Wood v. Moss: The Secret Service was justified in moving protesters opposed to the president farther from where he was having lunch than protesters supporting the president.
- Abramski v. U.S.: “Straw purchases” of guns are illegal.
- Lane v. Franks: A whistleblower can’t be fired for testifying in court.
- Utility Air Regulatory Group v. EPA: The Environmental Protection Agency’s ability to regulate greenhouse gas emissions is upheld.
- Riley v. California: Police need a warrant to search your cell phone.
- ABC v. Aereo: Aereo’s model of streaming over-the-air broadcasts to subscribers was declared illegal.
- McCullen v. Coakley: A 35-foot buffer zone to prevent harassment outside abortion clinics was struck down.
- NLRB v. Canning: The president can’t make recess appointments during pro forma Senate sessions.
- Harris v. Quinn: Home health care workers paid by the state don’t have to contribute to unions that negotiate on their behalf.
- Burwell v. Hobby Lobby: “Closely held” companies can deny their employees health coverage for contraception.
These are just some of the 74 opinions the Court delivered during this term. They range over a broad swath of commercial, political, and personal activity. And while there were a few cases where the Court was unanimous, as a general rule the more important a case is, the more likely there is to be a partisan division whose outcome is determined by who appointed the current nine justices.
Three of the current justices (Scalia, Kennedy, and Breyer) are in their 70s, and one (Ginsberg) is in her 80s. The next president, particularly if he or she serves two terms, is probably going to have the opportunity to reshape the Court for decades to come. Just something to think about.
By: Paul Waldman, Contributing Editor, The American Prospect, July 1, 2014
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