Month: June 2022

Ron DeSantis has governed Florida as a reactionary ideologue, not as a racist or a sexist. Unlike Trump, he isn’t an identity politics one-trick pony. So if he is the GOP nominee, who can beat him?

The Democrats would need someone who has plenty of energy and passion, a clear focus on stopping Orbanization, and strong debating chops. Having a nominee who can’t be blamed for any shortcomings of the Biden administration would also be helpful.

While Harris, if given a chance, might fit the bill, the first name that comes to my mind is Elizabeth Warren. While she was about the worst possible choice to challenge Trump, and she would have to refocus her campaign on democracy issues instead of inequality, she might well be a good option to take on DeSantis.

Because the Supreme Court doesn’t permit cameras. Today’s decision on the EPA and the Clean Air Act, based on a poorly defined, judge-made legal concept (the “major questions doctrine”) with no textual support in the Constitution, probably means the end of any effective attempts to limit greenhouse gas emissions at the federal level, barring some sort of dramatic change in our political and legal systems.

The Court is determined to destroy the “administrative state” in the name of pop democracy. The result of this decision should consequently be the end of the filibuster. If Congress is going to be required by the judiciary to legislate with specificity and agility every time a problem arises, it needs the ability to legislate, period. That ability simply doesn’t exist as long as the filibuster is in place.

We’re seeing a lot of agitation from the left as to whether Biden should run for re-election. While most of the complaints about his administration are misguided, as I’ve noted in previous posts, his age and inability to sell the Democratic product to the public make the question a fair one.

Here is my analysis of the situation:

1. If Trump runs and is the nominee, Biden definitely should run, because he is the perfect Trump foil; Trump can’t play his favorite card, identity politics, against him. His age is not much of an issue, he is willing to let Trump take center stage and destroy himself, and his candidacy makes January 6 the principal issue in the campaign, which works to the Democrats’ advantage.
2. If someone else (presumably DeSantis) is the GOP nominee, he should not run, because the contrast with a much younger candidate who is not tainted by January 6 would not work to his advantage. A race between Biden and DeSantis would revolve around energy, competence, and ideology, not the dangers posed by a counterrevolutionary GOP with a narcissistic, autocratic leader.

In 1857, the solution du jour to the slavery problem in the territories was “popular sovereignty.” It wasn’t working very well, as the residents of Kansas could have told you. The Supreme Court decided to put an end to the issue by openly siding with the pro-slavery side regardless of public sentiment. As we know, that didn’t turn out too well.

Anti-abortion activists like to analogize abortion to slavery. For reasons I described years ago, that analogy really doesn’t work, but let’s go with it. Alito probably thinks Dobbs is the opposite of Dred Scott, because he has taken an issue that was mostly relegated to the courts and returned it to the political sphere: i.e., we’re back to “popular sovereignty.” In reality, however, Dobbs resembles Dred Scott in that the class of individuals in question was deprived of important pre-existing rights by an activist judiciary. Alito is more the new Taney than the anti-Taney.

The American people clearly long for the economy of 2019. Who can blame them? Unemployment was low, and real wages were rising, even for unskilled workers. Notwithstanding historically low interest rates and enormous deficits, inflation was completely under control. It was still the dollar store economy, to be sure, but life was pretty good.

Today, the underlying policy background is essentially the same as it was in 2019. The Trump tax cuts were not repealed, and the additional welfare state spending in the last pandemic relief bill has been wound up. The deficit is falling fast. Unemployment is at about the same level as it was in 2019. Unlike 2019, however, we are plagued by inflation, interest rates are rising, and a recession could loom. What does this mean, in policy terms?

That we would be in the same position today if Trump had been elected in 2020, and that the GOP is not entitled to any presumption that it knows how to deal with inflation. In fact, the GOP’s usual elixirs–tax cuts–would actually make things worse by fueling additional demand. If you want to make cutting inflation an overriding priority, you would do it by ditching tariffs, raising taxes, and requiring state and local governments to put their federal overpayments into rainy day funds, not tax cuts. All of these ideas would be violently opposed by Trump and his GOP buddies, and they will not happen, so all we can do in the real world is try to deal with the supply side problems and be patient.

Roe is dead. Gas prices are too high. The airlines keep cancelling flights. The withdrawal from Afghanistan was chaotic. There isn’t enough baby formula. Interest rates are rising. The BBB didn’t pass. Why? It’s Biden’s fault, of course!

Or so the left would have you believe. In reality, Biden was elected to operate within the constraints of liberal democratic government, and unlike Trump, he is doing so. Given that he doesn’t really have a majority in the Senate, he has accomplished about as much as anyone could. And he has done it without constantly “fighting.”

To put it another way, imagine Warren or Sanders had been president. Would Roe still be in place? Would gas prices be lower? Would the airlines be running smoothly? Would we have stayed in Afghanistan? Would we have more baby formula? Would interest rates have remained microscopic? Would Manchin and Sinema have changed positions on the BBB? The obvious answer to all of those questions is no.

I think it is accurate to blame Biden for being a bad salesperson for his administration, but some of that is a deliberate attempt to return American government to some semblance of normality after Trump sucked all of the oxygen out of the air for the four previous years. You can also “blame” him for, thus far, failing to wipe out student debt, which is something Warren and Sanders would have done by now, but in my opinion, his measured approach is the correct one. The decision to withdraw from Afghanistan may not have been the best choice, but it was fully supported by the left. Everything else he has done, or not done, has either been completely within the mainstream of the Democratic Party, or has been the result of constitutional constraints. If the left wants to accomplish its agenda, it needs to persuade the electorate to vote in more progressives.

During the 2020 primaries, the Democratic candidates were occasionally asked how they were going to accomplish their ambitious objectives, in light of the makeup of the Senate, the filibuster, and the hostility of the counterrevolutionary Supreme Court. Biden said he would do it by working with reasonable Republicans. He was accused of being naive and stuck in the past when he said it, but his real, unspoken message was that we needed to lower our expectations. Warren, on the other hand, always responded by saying she would “fight” tirelessly. By that, she presumably meant she would run around the country and make lots of fiery speeches supporting her agenda.

The events of the last year have shown that Biden was right. The voters didn’t elect enough Democrats to get much done; “fighting” with Manchin and Sinema has accomplished nothing; and the most important pieces of legislation coming out of Congress, the initial pandemic relief bill excepted, have been bipartisan.

So what can progressives do, given that the deck is stacked against them in both the legal and the political system? They have two choices. First, they can lower their expectations, focus their energy on working with moderates in both parties to save liberal democracy from the Orbanizers, and wait for the angry old reactionaries to pass from the scene. Second, they can try to organize a movement to make fundamental changes to the political system and the judiciary. That will take vast amounts of energy, a lot of focus, plenty of patience, and, in all likelihood, a young, charismatic leader with the ability to fuse both identity- and class-based arguments into a single, persuasive whole.

Right now, the essential ingredients for Option 2 do not exist. That leaves us with Option 1.

RBG was, and remains, a feminist icon. It is supremely ironic, therefore, that no woman, and nobody on the left, is more responsible for the demise of Roe than she was.

This happened in two ways. First, and most obviously, she declined to retire at a time when Obama could have appointed her successor. Second, her critique of the reasoning behind Roe, if not its result, weakened its intellectual foundations and emboldened the right. It had plenty of merit, but disastrous results.

The Court’s decision in the praying football coach case depended, not on any novel interpretation of the Constitution, but on its interpretation of the facts. You can draw two inferences from that: first, the case will have limited precedential value; and second, it never should have been heard by the Supremes at all. The lower court’s view of the facts should have prevailed.

At least it’s better than spinning history.

The great weakness of Roe was the absence of a clear connection between abortion rights and any text in the Constitution or legislative history. The strengths of the opinion were its relevance to life in modern America and a plausible tie to a series of Supreme Court precedents involving state power and the family. The Dobbs opinion is Roe’s mirror image; its obvious shortcoming is its failure to adequately distinguish abortion from the other family law cases, including, but not limited to, Griswold. Saying that taking away life is a “moral” issue unlike any other may make sense to a lay person, but to a constitutional lawyer, it is a cry of desperation. In that sense, both the dissenters and Thomas are right; logically, it should be all or nothing.

Alito also tells us, in a lordly, condescending way, that his thought process is above politics. His unwillingness to follow the Thomas concurrence proves the untruth of that statement. The only reason to distinguish Dobbs from Griswold is the impact on public opinion.

Alito goes to a lot of trouble to try and demolish the argument in favor of the viability standard. This really was unnecessary to his opinion, which suggests that he wasn’t content to win a legal argument; he wanted to destroy viability as a legislative standard, too. That, in turn, tells us that his opinion was motivated more by his religious beliefs than by any purely legal reasoning.

Finally, for all of the length of the various opinions, the scope of disagreement is relatively small. The dissenters do not base their argument on the existence of abortion rights at the time the Fourteenth Amendment was adopted. There are really two issues in Dobbs: the first is whether rights allegedly protected by the Fourteenth Amendment were frozen in 1868 or can continue to evolve as attitudes and conditions change over time; and the second is whether the standards for disregarding stare decisis were met. Both of these issues will continue to plague the Court as the judicial counterrevolution continues.

To the surprise of nobody, Florida Republicans are agitating for a special session to consider legislation reducing the period in which abortions are legal from 15 to 6 weeks. Will DeSantis go along?

From his perspective, this is a tricky issue. On the one hand, he has always been ready to feed red meat on culture war questions to the base; why would he change now? On the other hand, he is comfortably ahead in the polls; this would add a new element of uncertainty to the campaign. In addition, he can’t be completely certain that the Florida Supreme Court would uphold a six-week limit in light of previous precedents and language in the state constitution protecting the right to privacy. Finally, while his other culture war gambits on CRT and the like are broadly popular, eliminating abortion rights is not. It would be a big risk.

If I were DeSantis, I wouldn’t do it; I would let the Florida Supreme Court rule on the 15-week limit and go from there. My guess, however, is that he will ignore my advice. Looking forward to the presidential primaries, either in 2024 or 2028, he will want to avoid looking soft on abortion relative to the even harder right.

As I noted in my last post, several social conservative commentators hope the GOP can be convinced to provide more government support for women with unwanted pregnancies in order to alleviate suffering, provide equity, and (not least) build support for the anti-abortion position in the general public. Could that happen?

To answer that question, you need to consider the DNA of the GOP. The Republican Party is a swaggering, testosterone-crazed daddy party. It believes in strength and the cult of self-reliance, and views anyone who asks for government help as a pathetic loser who just wants to lounge in the hammock of dependency. It likes to blow stuff up. It doesn’t build, protect, and nurture; it kicks ass and takes names.

With that in mind, what do you think the GOP will do?

Given the strength of the forces against them after Roe, Ross Douthat thinks the victory of the anti-abortion side is quite remarkable. He’s right. So how did it happen?

There are two reasons that dwarf the rest. First, Roe was vulnerable from the start, as even left-leaning legal commentators were unpersuaded by its legal analysis. It always sounded more like the deliberations of a group of legislators than a legal opinion. Second, the relatively small group of truly “pro-life” activists made a number of Faustian bargains to win over the rest of the Republican Party. They allied themselves with the PBPs and most of the Reactionaries in exchange for support for business tax cuts, reactionary judges, increased inequality, and racist, misogynist, and even insurrectionist rhetoric and actions. In the end, it was the Reactionaries that put them over the top.

Douthat hopes against hope that the GOP can be persuaded to become much more pro-family in order to deal with the social problems that will inevitably result from the end of abortion. I will explain in my next post why that cannot, and will not, happen. Other parts of his column, however, deserve a response here:

1. Douthat’s views on abortion were not conditioned on appropriate expansions of the welfare state, which he undoubtedly knows are highly unlikely. To put it another way, he views the misery of women with unwanted pregnancies to be unfortunate, but acceptable, collateral damage in the fight to save fetuses. His view of the issue is thus similar to that of the mainstream of the GOP on questions such as climate change and gun control.
2. The more principled position would have been to view abortion prohibitions and massive welfare state expansions as a single, indivisible package. I have yet to read a single column from a “pro-life” commentator who actually took that position.
3. Will any of the people who argued so passionately that ending abortion could be good for women display the same kind of militancy with their legislators about providing medical and economic benefits for women with unwanted pregnancies? Don’t hold your breath.
4. When the horror stories start flooding in–and they will–this will be another blow to the future of Christianity in this country. Aligning yourself with odious members of the right, deliberately injuring women, and engaging in smashmouth legal and political tactics in order to impose your values on others is not a good way to win hearts and minds in the long run.

According to Larry Summers and others, history tells us that a recession is inevitable, the level of job vacancies notwithstanding. Are they right?

No, because inflation is being driven by highly unusual circumstances: cost increases due to persistent supply chain problems and the Ukraine war; and demand fueled by a mountain of private savings accumulated during the pandemic. As I’ve noted many times before, the Fed can’t do anything about either of those phenomena; it can only bring down inflation by crushing asset prices and, presumably, consumer confidence.

If the supply chain problems ease over time and spending from savings continues at a relatively high level, a recession can be avoided; the history cited by Summers is not really an adequate guide here. Will that happen? I don’t know, and neither do you.

The Alito opinion in Dobbs tells us that the Court has just returned the abortion issue from the legal system to the political arena, as it was in 1973. Are we just returning to the world as it existed before Roe?

No, because circumstances are far different. The extreme right has been energized. In 1973, there were no vigilante laws, no extraterritoriality issues, and no proposals for a national ban on abortion. All of these ideas are very much on the table today. As a result, instead of a low-key issue that motivated a handful of true believers, abortion is at the heart of a national culture war.

It isn’t going to be pretty.