Month: June 2022

ROLLING BACK OUR RIGHTS

There’s a fire starting in my heart.

Reaching a fever pitch, it’s bringing me out the dark.

After Dobbs, I can see you crystal clear.

Go ‘head and sell me out; take all that I hold dear.

See how I’ll fight with every one of you.

Don’t underestimate the things that I will do.

_______________

There’s a fire starting in my heart.

Reaching a fever pitch

And it’s bringing me out the dark.

_________

What you call “pro-life’s” an empty slogan.

It’s just a pretext for keeping women down.

What you call “pro-life” makes me less human.

I’ll just keeping saying:

We used to have it all.

Rolling back our rights.

You think wisdom comes with balls.

Well, forget it. I’ve just begun to fight.

__________

Parody of “Rolling in the Deep” by Adele.

Roe is rubbish, says Alito in Dobbs. It’s crap law, based on crap history. I can’t reasonably accuse those people of being culture war partisans, since most of them were appointed by Republican presidents, but I can certainly call them morons. And I will–over and over again.

While the substance of Alito’s opinion is subject to debate by reasonable people, the shrillness of his tone is deplorable. I will add that Scalia’s opinion in Heller, which Alito joined, is definitely crap law based on crap history, and that the Court has now made it worse.

There are two messages here. First, history–particularly history that is 200 years old–is rarely unambiguous, so placing too much reliance on it in your jurisprudence is a mistake. Second, arrogance will receive a response in kind at some point in time. Don’t be surprised if a future Supreme Court uses the same scornful tone on Heller that Alito employed in Dobbs.

It’s 2023. The GOP has control of both houses of Congress. A huge fight over the debt ceiling is looming. Both sides know the Republican leadership is going to take hostages, because that’s what Republicans do. The only question is, what will the ransom be?

McCarthy and McConnell, pressed by a restless base and their extremist members, come up with a brilliant idea. Why not demand a nationwide ban on abortion as the price for not destroying the nation’s credit? Force the Democrats to either give up their signature culture war issue–without eliminating the filibuster–or run in 2024 with asset prices plunging and the economy in chaos. Sure, it would be bad for the country, but so what? Politics is about gaining and exercising power, not doing good for the American people.

Biden refuses the deal. He tells the GOP that the Constitution requires him to pay the nation’s debts, and that he will continue to do so, whether they raise the debt ceiling or not.

It’s now 11:59. The donor class, which stands to be the big loser if the country defaults, is screaming for relief. Do the Republicans appease them and back down, or do they heed the base and blow everything up? Stay tuned.

The Alito opinion differs from the draft in that much of it is designed to address the dissent, which is unsurprising. The tone of it–angry, slashing, defiant culture warrior–has not changed, and the structure of the argument is very similar. On the most important point–the impact of the decision on Griswold and Obergefell–the final version still unequivocally distinguishes abortion from the other cases, even if the logic behind the decision doesn’t.

Thomas, I as predicted, spiked the football. He wants to overturn Griswold and Obergefell, as well. He doesn’t appear to have any support for that, and his concurring opinion is full of citations to opinions written by . . . himself.

Kavanaugh’s concurrence is much more moderate in tone, probably for political reasons. It didn’t work; Susan Collins has already called him a liar this morning. The most interesting thing about his opinion is his clear statement that any future attempt to criminalize crossing state lines for the purpose of getting an abortion will run afoul of the First Amendment right to travel. That case will undoubtedly be coming to the Court in the next few years.

The Roberts concurrence focuses on judicial restraint. Everyone, including me, expected that.

I will have more posts on the decision from a variety of angles over the next few days.

The Thomas opinion in the New York gun case replaces the two-part test used by all of the Courts of Appeals with a single standard based on a reactionary reading of American history. As of today, the courts can no longer look at the severity of the problem of gun violence, and the appropriateness of any given regulation to address it; it can only examine conditions as they existed in 1791 to determine if analogous regulations were pervasive at the time. With the current Supreme Court, the answer will always be no.

In reality, if not in theory, the Thomas opinion applies a strict scrutiny test to gun ownership. This means that gun owners are entitled to the same degree of protection from discriminatory regulation as historically disadvantaged ethnic minorities. Does that sound like a reasonable reading of American history to you?

I can see it now; the next reactionary project will be to have the judiciary identify white male Christians as a “suspect class” entitled to strict scrutiny protections. They already identify themselves as some sort of an endangered species, so why not go all the way and make it official?

Imagine a steel cage match between these two titans of wannabe autocracy. Who is better for the left? Let’s break it down:

1. ELECTION MADNESS: Any election with Trump is a guaranteed constitutional crisis. While the base could easily get out of control with DeSantis as the nominee, it is not a sure thing. ADVANTAGE: DESANTIS.
2. FOREIGN POLICY: An unchained Trump would probably pull out of NATO and change sides in the Ukraine war. The GOP leadership would complain, but do nothing to stop him. DeSantis would be more in the GOP mainstream; he would content himself with a war with Iran. ADVANTAGE: DESANTIS.
3. ORBANIZATION: Trump would be so busy shooting RINOs that he would have little time and energy to take away our liberties. DeSantis would be more focused on the Orbanization project. ADVANTAGE: TRUMP.
4. OWNING THE LIBS: Trump taught the right that it was OK to tell blue people every day that they aren’t real Americans, and that the right hates them. DeSantis has taken that lesson to heart. ADVANTAGE: EVEN.
5. CLIMATE CHANGE: Trump will continue to tell us we need to bring back the economy of the 1950s, and that climate change is a Chinese hoax. DeSantis will avoid saying anything in public, but will make some minimal efforts to deal with climate change behind the scenes. ADVANTAGE: DESANTIS.
6. TAXING AND SPENDING: Trump is an orthodox tax cut and deregulation Republican, with a weird side dish of protectionism and managed trade. DeSantis, so far, has been more of a pure populist on economic issues, but his ideas are a bit obscure at this point. Would the GOP establishment flip him? Probably. ADVANTAGE: TBD.

On balance, you would have to give the edge to DeSantis, who would also be less corrupt. Does that make him an attractive candidate to the left? Hardly.

Fourteen years ago, the self-styled “originalist” Justice Scalia ignored the text of the Second Amendment, cherrypicked history, and found that the Constitution provides an individual right to carry guns. Today, Justice Thomas made matters worse by imposing a legal standard on gun regulations that similarly has no basis either in the text of the Second Amendment or in history. Are you surprised?

The gist of this opinion is that gun regulations (even those in effect for over a century) will be judged in the future solely on the basis of whether they are analogous to restrictions in existence in 1791, and that the burden of proving the analogy will be on the government. In this case, the state provided a mountain of evidence relating to gun regulations in England prior to the Revolution, in the colonies prior to the adoption of the Second Amendment, and in American states and territories subsequent to 1791. Thomas, the self-appointed final arbiter of American history, takes on this mountain of evidence piece by piece and finds every bit of it wanting. Circumstances have changed, or the law wasn’t exactly on point, or it was an outlier, or the analogy is too strained, or the law was too old to matter, or the law was too new to matter. None of it was good enough to overcome the presumption operating in favor of guns.

This experience is going to be repeated over and over again, particularly with analogies to 18th century weapons and “sensitive places,” a term not found in the Second Amendment. The lower courts will make its best guess as to whether an analogy works or not, and then Thomas will find that it doesn’t. No gun law is going to survive this kind of biased historical scrutiny unless the Roberts/Kavanaugh concurring opinion is the real majority opinion, which is possible.

I think people should go to the street where Thomas lives armed with AR-15s and tell him his neighborhood is not, historically speaking, a “sensitive place.” When he complains he is being threatened, the left can argue that they are just exercising the Second Amendment rights he values so highly. As to the goose, so the gander.

Ron DeSantis is clearly keeping his options open. By pushing his “freedom for me, but not for thee” agenda, he has made himself the darling of the base. He will undoubtedly be the front-runner if Trump doesn’t run. But what if the man on golf cart does, in fact, run? Having positioned himself to the right of Trump, would DeSantis have the nerve to take him on?

Here are the Hungarian Candidate’s options:

1. AGREE TO BECOME TRUMP’S VP: There are three huge problems with this choice. First, one can’t assume Trump would agree to leave office in 2028, since he has no respect for any other part of the Constitution. Second, the Pence example suggests that the four years as VP would be a truly miserable experience. Finally, if Trump actually leaves the stage, his unpopularity will attach to his VP. It’s a really bad bet.
2. BIDE YOUR TIME: If Trump loses in 2024, DeSantis would be the leading candidate to be the GOP nominee in a battle with a Democrat who would be wearing Biden’s unpopularity. If Trump wins, his VP could be a factor in the primaries in 2028, but the likelihood is that nobody with any status in the GOP will want the job. DeSantis is in good shape either way.
3. RUN AGAINST TRUMP FROM THE RIGHT: The anti-anti-Trumpers (AATs) will have his back, and there will be plenty of support from the intellectual leaders of the party. Would that be enough to beat the man on golf cart? The results of the GOP primaries and a variety of polls tell me the answer is no. The base is still addicted to Trump, and wants DeSantis to wait his turn.

In short, I think he will chicken out unless the polls indicate the combination of the January 6 Committee proceedings and the Ukraine war have thrown Trump’s support off a cliff. But what if he goes ahead? Which of these odious candidates would be better, from a center-left perspective? For that, see my next post.

Holiday!

Celebrate!

——Madonna

The gas tax holiday is a fairly desperate effort to prove to an angry public that the administration is doing everything it can to get inflation under control. Unlike the pending proposal to reduce the tariffs on Chinese imports, it is bad policy. High gas prices are good for the environment, the tax is necessary to fund infrastructure improvements, and in any event, the magic of the marketplace has already started to work without government assistance. Gas prices have fallen significantly in the last week in response to fears about a recession–not that anyone in the media has noticed.

My guess is that it won’t pass, mostly because the GOP won’t support it. Having thus opposed a tax cut that would reduce inflation, the right will then bang on about how Biden has done nothing about inflation, and about how we need to cut taxes on business, thereby proving yet again that it is far more interested in power than principle.

In the early stages of the war, I imagined a scenario in which NATO, through neutral countries, had to airlift supplies to Kyiv. While that turned out to be unnecessary, a similar situation, on a larger scale, is evolving today. The Russian naval blockade is preventing Ukraine from exporting grain through the Black Sea, with severe consequences to the entire world.

The best solution to this would be for the Ukrainians to use NATO weapons to break the blockade. That may not be possible. Barring that, at some point in time, NATO will probably have to organize and provide military support for a convoy of merchant ships from neutral countries to run the blockade. It would be dangerous, to be sure. But Stalin didn’t shoot down the American planes in 1948; would Putin really have the nerve to risk World War III for such a limited purpose, particularly in light of the support it would cost him in the rest of the world?

I predicted in early January that the Supreme Court would increasingly take the completely ahistorical position that the legally relevant conflict in America was not between individual religions, but between religion and “secular humanism.” The Carson decision is more evidence that I was right. The Court is determined to prevent what it sees as discrimination against religion by secular authorities even if it means disregarding the clear requirements of the Establishment Clause.

The majority opinion assures us that states are still entitled to operate purely secular public school systems. I am about as comforted by that comment as I am by Alito’s statement in the draft Dobbs decision that abortion is completely distinguishable from birth control or LGBTQ issues. The logic of this decision, and those it cites in support, will ultimately lead to a serious argument that states are required to operate voucher systems for religious schools if they want to maintain secular public schools. At that point, all of us will be required to support schools that espouse religious values with which we have fundamental disagreements with our tax dollars, and American history will have been turned on its head.

Ross Douthat thinks the age of cheap money is over, that federal spending will have to be reduced as a result, and that both progressives and populists will suffer. Paul Krugman, on the other hand, thinks the current regime of inflation and higher interest rates is just a blip. Who is right?

Two observations here. First, I noted in a series of posts years ago that the American economy was hooked on low interest rates, and that any change in conditions would have significant implications to asset prices and government spending programs. I was right and will take a bow. Second, this is a very important question, with no clear answer. We can only talk in probabilities, not certainties.

Low interest rates were caused by low rates of inflation, which in turn were caused by demographic and technological change and by globalization. These trends earned the name “secular stagnation,” and were a universal phenomenon among highly developed countries. The demographic changes are still with us. The pace of technological change is still about the same. Globalization will change as the result of our uneasy relationship with China, but will not disappear. The war and the pandemic, on the other hand, will go away at some point. In my opinion, therefore, the balance of probabilities falls in Krugman’s favor.

So the war rumbles on in Ukraine.

And now Putin is bringing the pain.

Can we break the blockade?

Can we send enough aid?

Can we take back the ill-gotten gains?

The leaders of the GOP know perfectly well that Trump is dangerous and irresponsible. They also know that the man on golf cart commands the loyalty of a majority of Republican voters, however, and they don’t have the nerve to cross him. As a result, they enable him, and pray that someone else will solve their problem for them.

The January 6 Committee is their deus ex machina. It is putting the blame squarely on Trump and his minions, not on the GOP as a whole. That’s perfect for the likes of McCarthy, McConnell, and DeSantis. They can rail about how unfair the process is, thereby maintaining their connection with the base, while the Democrats and the GOP dissidents destroy Trump’s reputation with swing voters, thereby making it more likely that someone else will be the nominee in 2024, which is exactly what they want.

I’m sure you remember the scene in “The Wizard of Oz” in which the Wicked Witch of the West writes “Surrender Dorothy” in the sky. Putin’s campaign in Ukraine is a bit like that. He has no choice; he doesn’t have the resources to occupy the country, so he has to break its will.

There were three possible ways to accomplish this. The first was by a lightning campaign with a big dose of political persuasion; the second was through shock and awe; and the third was by methodically destroying everything in the Donbas and imposing a sea blockade. The first two approaches have already failed; the fate of the third remains to be seen.

The introduction of longer-range American artillery to the battlefield will make dramatic Russian advances unlikely. The blockade presents different issues. I will discuss these tomorrow.