But Can We Keep It?
The Jury is out (and maybe the judge too)
Over at The Bulwark, Charlie Sykes has a great — and greatly disturbing — post in his Morning Shots called A Requiem for the Independent Judiciary. He draws on the hyper-partisan battle over a crucial Wisconsin Supreme Court seat to make the case that,
“If judges are merely partisan legislators then what, really, does the “rule of law” mean? If the law changes with every election, is it really the law, or simply politics by other means?
Why should the courts and their rulings deserve any more respect or deference than the utterings of any other hack politician who holds temporary office?”
I find this a terrifically concise, insightful, and frightful encapsulation of one of the most damaging blows that Trump (aided by McConnell and many others) has inflicted on our Republic. He has put the lie to the whole (perhaps already suspect) idea of an independent judiciary.
I don’t know how “The Judiciary” recovers from this, at least in any near term — and therefore what this means for the future prospects of our Constitutional order.
Certainly it has been no secret that, over our history, individual state and federal judges, and even whole panels of judges in certain districts and circuits, including the Supreme Court, have reflected a range of approaches broadly categorizable from liberal to conservative — and even reactionary. And there have been times in our history where judges at every level have issued what, at the time and in the annals of history, have been understood to be especially egregious decisions. (Of course, one’s definition of “egregious” certainly depends upon one’s own partisan lens).
A Republic if you can Keep It
But what Charlie Sykes is pointing out, I think, is something different. It’s something we haven’t seen since perhaps the Reconstruction Era and its aftermath. It goes well beyond the conventional range of partisan differences that we will always need to navigate as a democratic republic (“. . .if,” as Benjamin Franklin is alleged to have said, “you can keep it”).
I think what Charlie Sykes has identified is a development that is not simply designed to move the judiciary and the law in some more conservative direction. It is explicitly designed, instead, to effect a fundamental reset of our Constitutional order.
In other words, the reversal of Roe v. Wade is not simply part of an assault on women’s rights or a disagreement over the Constitutional basis for claims around the right to privacy, etc. And it’s not simply a manifestation, in various federal and state courts, of some sort of conservative “correction” of allegedly overly liberal or expansive prior court rulings and approaches.
It is not simply a legal “assault” designed as a relatively conventional systemic corrective. Sykes has identified the essence of a broad-based war of conquest of our heretofore relatively established constitutional order.
I need not revisit the history of the Federalist Society and its predecessors. And neither need I recount the decades-long history of how a relative small cadre of extremely wealthy and influential ultra-conservative plutocrats (like the Koch brothers) have quietly but systematically sponsored and funded the creation and deployment of an entire political ecosystem dedicated to the elimination of liberalism in American governance and society.
All of this has been well documented by historians of law and politics (and I’m not going to provide a list of citations. You can Google it!).
This is the judicial front in the comprehensive war on our constitutional and social order — a war that has become increasingly public, explicit, and menacing.
Trump and the MAGA movement are not the cause of this war. But Trump is the relatively unexpected catalyst that enabled and triggered the transition, from decades of myriad insidious, relatively camouflaged behind-the-scenes efforts, to the outright assaults we are now experiencing on every front — judicial, political, economic, and cultural.
I said above that I don’t know how “The Judiciary” recovers from this, at least in any near term — and therefore what this means for the future prospects of our Constitutional order — especially if we continue to treat this all-out war on our Republic as just another political “market correction.”
A Domestic Cold War
And to put this in context, as I have argued in previous posts, when you look at the scale and scope of this now open and intensifying war of conquest, what you realize is that there is a very clear and increasingly likely sought-for near-term end-game: the de facto devolution of our overarching national capacity to support a national union of states and, therefore, a united democratic republic.
The near-term endgame is to create and build walls around facts-on-the-ground being put in place in the many increasingly Republican-controlled state “laboratories of autocracy.” Right before our eyes, the Republican juggernaut is putting in place the prerequisites for something far more destructive than a simple divorce. This juggernaut is creating the conditions for a domestic Cold War that will sow and sustain disunion for the foreseeable future.
What I mean by a domestic Cold War, is the creation of a confederacy of states working in tandem to restructure their judicial, political, cultural, and related governing and normative institutions and policies around a broadly “illiberal” agenda. They are working to transition from “laboratories of autocracy,” to a confederation of actually autocratic states (under cover of formalistic “democratic” mechanisms, like elections that are then contested, undermined, and overturned, etc.
In Fact, a Confederacy
In the near-term, these domestic cold warriors are working to distinguish and “incorporate” themselves along these illiberal lines in both fact and law. In the longer term, they would be looking to use the cudgel of such institutionalized disunion and unrest (with a big assist from the Supreme Court) to consolidate and leverage their Cold War confederacy into resetting our constitutional order around an authoritarian agenda And horrifyingly, their models for this, at least at the moment, appear to be the autocratic regime of Victor Orban, of Hungary and the murderous regime of President Vladimir Putin of Russia.
What is perhaps most worrisome in this whole scenario is that, for the most part, Americans, including our Democratic Party leadership, seem unaware of the seriousness of purpose of, and the level of threat posed by, our domestic cold warriors.
Donald Trump, for instance, after betraying our country and our allies throughout his presidency, and after initially refusing to accede to the outcome of the presidential election and leading an insurrection to overturn it, has since, as an active candidate for this same Office of the Presidency, explicitly declared his intentions to either dismantle much of our democratic institutions or to transform them into branches of his corrupt personal power syndicate.
The Supreme Court is in the process of acting rapidly and by fiat to transform the meaning and interpretation of our Constitution, blithely overturning established precedents and inventing novel constitutional principles and interpretations.
Florida’s Ron DeSantis, Texas’s Greg Abbott — as well as other Republican governors of states where Republicans hold “trifectas” of executive, legislative, and judicial power — are also acting openly, and essentially by fiat, to quash and criminalize what heretofore were perfectly lawful liberal ideas and practices at the state level. And pending at the moment is a ruling by a reactionary federal judge in Texas on a suit brought by several states, that could impose a nationwide ban on a long-FDA-approved drug related to abortions and important to women’s health care
I could go on and on.
And they appear to be able to sustain a level of unaccountability that is both baffling and enormously dispiriting. Why? Perhaps because we are not taking them seriously enough. We are not taking them at their word and deed.
But, these domestic cold warriors and empowered reactionaries are what exactly what they say they are: insurrectionists of various stripes determined to effect fundamental “illiberal” changes to our democratic Republic, state-by-state and nationally. Theirs are extraordinary efforts in an extraordinarily dangerous time; and they call for equally extraordinary counter-measures.
It will not be enough for those of us committed to the future of a democratic Republic to wait to act until elections come around. This merely plays into the insurrectionist’s hands. We need to show-up and to relentlessly counter the illiberal agenda on every front and at every turn.
The Need for a Leadership Coalition
I wish something like the Democratic Party, with its vast network of statewide organizations, could pull-together and unite active grass-roots advocacy and counter-insurgency efforts across the land. But, the Democratic Party has neither the capacity nor, really, the credibility to do this. But somehow, we need to build such an infrastructure, a leadership coalition, where those committed to democracy can enlist in effective, coordinated efforts beyond periodic voting.
Of course, there are already many, many organizations active in such efforts. So at the very least, in order to maximize both their local and their overall political effectiveness, it could be a great boost to the pro-democratic cause if a significant cohort of such groups’ leaders would come together and sign-on to a coalition action-agenda or “manifesto.”
The point of such an agenda would be to publicly and widely identify the seriousness of the domestic threats we face — so that many more Americans can better understand these threats and then evaluate whether and how they can help face these threats — and to create alignment and some coordinating capacity around currently dispersed efforts to counter and defeat the decades-in-the-making anti-democratic and insurrectionary juggernaut that we face.
Against the juggernaut of fast-consolidating illiberal confederacy, we need to form a union of pro-Democratic forces. It can’t happen soon enough