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In the end, the Russian elites rallied around Putin, and the conflict fizzled. That’s no surprise; they owe their positions to him. But average people did nothing to support the government; the residents of Rostov actually cheered the Wagner fighters on their way out. Why should they lift a finger to help the regime? Putin has brought them nothing but economic troubles and a war they never requested. This was a battle purely for Putin’s puppets; it had nothing to do with them.

Things don’t exactly look great for the judo master at this point. The war is a massive failure. Finland is now part of NATO, with Sweden likely to follow. The Russian economy has survived, but is hardly thriving. Russia has lost influence to China in the rest of the former USSR; it is, in fact, practically a Chinese vassal state at this point. The most productive citizens of the country have fled. Russia’s only significant export will lose most of its value once electric cars dominate the market. Finally, and most importantly, Putin is 70, and has no obvious successor. It is unlikely his neo-feudal system will survive him without major changes and challenges.

Two people–both foreigners–could save his bacon. Xi might be able to give him weapons to win the war, although that seems highly unlikely at this point. His other potential savior, of course, is Donald Trump.

America, it’s up to you. A vote for Trump is nothing less than a vote for Putin and his corrupt, militaristic autocracy. Is that what you want?

Here’s a great law school exam question. The state of X has a new law that forbids trans people from getting certain kinds of medical treatment that have virtually unanimous support from the medical community. There are, however, a few eccentric doctors who support the state law.

Lawyers for some trans people in the state file a lawsuit based on alleged equal protection and substantive due process violations. Most cases based on these theories fail, because they are subject to an extremely deferential standard of review. This case, however, raises some fascinating questions:

1. Are trans people a suspect class, entitled to a higher standard of review? They don’t have much of a history, but you can certainly argue that the record of official oppression is clear, and that suspect class status is appropriate.
2. Is state interference with medical treatment prescribed by a doctor, and consistent with prevailing practices, a violation of a fundamental right? Remember, the right to privacy wasn’t eliminated in Dobbs; that case only applies to abortion. Medical autonomy sounds very much like a privacy right.
3. Even if the case is controlled by the mere rationality standard, is the support of the overwhelming majority of the medical community enough to get the plaintiff over that hurdle? If the case law is applied strictly, probably not, but you could very well see judges using a slightly higher standard of review than the case law suggests is appropriate to invalidate the restrictions based on the persuasiveness of the medical testimony.

We’re going to be seeing cases like this on a routine basis in the very near future. They will make fascinating reading for constitutional lawyers like me.

A column in today’s NYT indicated that an extraordinary percentage of the members of Gen Z identify themselves as LGBTQ. You don’t have to be part of the hard right to find that alarming. Common sense tells us that a substantial portion of the increase is due to favorable portrayals of LGBTQ people on TV, in movies, and on the internet; calling yourself LGBTQ has become fashionable as a result. If you’re, say, Ron DeSantis, what can you do about this?

You would start, of course, by excluding LGBTQ people and ideas from the public sphere to the maximum extent possible. The right is already starting to do that. Regulating public activity, however, would not be enough. You could only put the genie back in the bottle with Chinese levels of censorship of TV, the movies, and the internet for many years, if not decades. Nothing less than that has any hope of success.

Leaving aside the obvious First Amendment issues with this approach, would you really want to live in a country with that kind of censorship? Didn’t think so.

Prigozhin is going to Belarus, presumably in the belief he is safe there. Does he really think Putin will live and let live? Does he honestly believe that he can’t be harmed in a country that is run by Putin’s lackey?

He’s going to wind up in prison or dead–probably the latter. If there is an antidote to novichok, I would be investing in it immediately.

No dictator can afford to look vulnerable; if the fear he inspires dissipates, he can lose power in the blink of an eye. In light of that, how will Putin respond to yesterday’s events? You can expect him to escalate in Ukraine and to unleash a new wave of repression at home to send the message that he’s still the boss.

But what of the Chinese? Prigozhin is yet another warning that they have made a bad investment. Do they start inching away from someone they have reason to believe is a loser, or do they double down and hope for the best even though they know Putin can’t last forever, even under the best case scenario? Given Xi’s behavior to date, the latter is the better bet.

We know that Donald Trump is a huge fan of Vladimir Putin, so we could hardly be surprised when Trump took Putin’s side in the battle with Prigozhin. He didn’t stop there, however. He went on to argue that Xi wants largely vacant Russian land for China, and that Biden takes his orders from Xi; hence, presumably, American opposition to Putin in Ukraine.

This raises two important questions. First, can Trump actually be crazy enough to believe something that is completely at odds with the undisputed facts? Second, how can the GOP electorate support a candidate who is that obviously unhinged?

It’s Dobbs day! How has the picture changed over the past year?

The first phase, which focused on state legislatures and a few referenda, is essentially over. There were a few surprises, but by and large we got what we expected; the red states have enacted strict new legislation, and the blue states have taken steps to further protect abortion rights. So what’s next?

The red team will do its best to impose its will on the blue states. This will manifest itself in three ways:

1. FEDERAL LEGISLATION: The House GOP leadership is apparently processing a 15 week national ban in spite of polls saying this is suicide in swing districts. The legislation obviously isn’t going anywhere in the Senate until 2025. If the GOP sweeps the 2024 election, there will be enormous pressure put on McConnell to abolish the filibuster. My guess is that he will ultimately give way, if it comes to that.
2. FETAL PERSONHOOD: The ideal solution, for the anti-abortion crowd, is a Supreme Court decision finding that fetuses are entitled to protection under the Fourteenth Amendment. That won’t happen with the existing Court, but it might in the future, particularly if DeSantis wins the election.
3. EXTRATERRITORIALITY: You can anticipate lots of efforts by red states to control pro-abortion actions by residents in blue states. Will they succeed? The concurring opinions in Dobbs suggest not, but we don’t really know yet.

In my experience, for the most part, reactionaries typically just mouth talking points provided by Fox News. Wokeness is a classic example; as Trump correctly points out, the average reactionary doesn’t even know what it means. There are, however, two issues on which they will express strong opinions without any prompting. They are:

1. WELFARE: Bumper stickers complaining that the government takes your hard-earned money and gives it to lazy, unemployed people are popular in my neck of the woods.
2. AFFIRMATIVE ACTION: Reactionaries frequently react strongly to suggestions that they are racists. They will argue that the American creed is that everyone is entitled to equal treatment regardless of the color of his skin, and that affirmative action violates that standard. To a reactionary, the deck is stacked in favor of minorities, and against him; that is why he is falling behind.

This world view assumes that millions of Americans have a comfortable life lounging in the hammock of dependency, that most of them are minorities, that white people and people of color are in the same position at the starting line, and that affirmative action programs are far more pervasive than they actually are. None of these statements are true, but if you try and make that case to a reactionary, you will be wasting your breath.

What does this mean, in practical terms? If you are a Democrat, and you want to improve the safety net, you will need to prove that your proposal is neither welfare nor a form of affirmative action if you want it to be accepted by a large majority of the population.

Throughout my lifetime, the Reaganite view of the state has prevailed among GOP voters. This involves reducing the size of the federal government (the military excepted) to the maximum extent possible in order to increase individual freedom and economic growth. Some of the lesser 2024 presidential candidates still subscribe to this view. The two most important candidates, however, do not.

Ron DeSantis only believes in his kind of freedom for his kind of people. He wants to expand the powers of the federal government (the executive branch in particular) in order to crush wokeness, not to expand opportunity or reduce inequality. You could call his vision of the state the dictatorship of the unwoke. Trump, on the other hand, sees the federal government as a prize which, once won, is his personal property–hence, his attitude towards public records. As far as he’s concerned, after he is elected, he has the right to do whatever he wants in office, regardless of the law and constitutional norms. It is an attitude typically identified with divine right rulers–Caligula and Louis XIV, not Washington and Jefferson.

Which of these three visions of the state will prevail in 2024? That’s really what the primaries will be about.

Rich Lowry thinks the new president–either DeSantis or Biden–should pardon Trump. By doing so, he will supposedly extract a lot of the poison from the body politic. Is Lowry right?

If DeSantis does it, no. Instead of being viewed as a selfless, bipartisan act akin to the Nixon pardon, it would be seen as the ultimate effort to own the libs, and highly resented. If Biden does it, however, it would be an act both of generosity and domination; it would show the world that Trump is dependent on his goodwill. It would also prove that the establishment isn’t as evil as Trump says it is, and avoid the logistical problems that would result with a prison inmate entitled to Secret Service protection. So, yes, it would be a good idea under those circumstances, although even Biden can’t help Trump with any state charges.

The McConnell Project has the left hemmed in. The filibuster makes partisan legislation that is not directly tied to taxing and spending practically impossible. The Supreme Court has made it clear that major policy changes through regulation will not be permitted, either. In the meantime, the red states are running wild imposing their idea of “freedom” (i.e., just another word for nothing left to lose) on disfavored groups. It feels like the Democrats are in office, but not in power. What can they do?

They don’t have enough votes to do much about red state legislatures, and they won’t have enough senators to kill the filibuster, but they can certainly complain about the Supreme Court. I’m not sure Biden will fully embrace this, but you can expect to hear a lot of discussion about reforming the Court as the judicial counterrevolution rumbles on, and I expect it to be a big issue in the 2028 primaries.

The debt ceiling is a cancer on the body politic. Biden said he wanted to resolve the issue regarding the Fourteenth Amendment after the agreement was reached, but nothing has been done since then. It doesn’t appear to be a priority. Why?

For two reasons. First of all, in the absence of a crisis, he would be asking for an advisory opinion, which isn’t permitted under our constitutional jurisprudence. Second, it is highly unlikely that the GOP will press the issue in January, 2025, because they will have no reason to do so if Trump is president, and little incentive to challenge Biden immediately after he wins an election.

Unfortunately, things will be different in 2026 and 2027. Don’t be surprised if we go through the same trauma before the 2028 election.

The conversation on wokeness resumes.

C: Before I get into the four threads of wokeness in more detail, I have a more general question. It appears to me that Trump has a legitimate argument that he was attacking wokeness long before you were. What do you say to that?

D: That’s all he was doing–talking. He always viewed wokeness as a punchline to a joke. He never took it seriously–he just used it as a tool to bind himself to the base. I’ve actually done something about it. Give me the powers of the presidency, and I will destroy wokeness forever. That’s a promise.

C: OK. With that down, let’s start with the wokeness thread that is most closely tied to you: public health wokeness.

D: That’s a good place to start. It’s right in my wheelhouse.

C: You’ve said Trump should have fired Fauci. That, in and of itself, wouldn’t have changed much. What else did he screw up, in your opinion?

D: First of all, he should have used his powers to prohibit state, local, and business mask mandates.

C: What powers are those? I’m not aware of any federal authority to do that.

D: If you look hard enough, you can always find something. You have to be willing to push the envelope to get anything done. That’s what I’ve done in Florida.

C: Yes, and you’ve lost a lot of cases in federal court.

D: Those were woke Obama and Biden judges. We’ll get rid of them. In any event, nothing ventured, nothing gained.

C: The vaccine was developed under Trump. You appear to have issues with it, as well.

D: Right. First of all, the vaccine was rushed, and inadequately tested. We don’t really know what its long term effects are. Second, it doesn’t work for everyone. Finally, vaccine mandates are always wrong, and should be prohibited. That’s on Biden, not Trump.

C: Are you an anti-vaxxer?

D: The science tells me there are problems with the vaccine. They need to be explored and publicized. That doesn’t make me an anti-vaxxer. I’m pro-freedom, not anti-vax. If people know the facts and decide to take the vaccine, that’s up to them.

C: Freedom to spread the virus and kill other people? Is that a freedom worth fighting for?

D: Human life is important, but the freedom to live and work normally is even more important. It is a balancing act, and a matter of priorities.

C: Would you acknowledge that the vaccine saved millions of lives and gave the people who took it more freedom to live normally?

D: The science makes me doubt that.

C: Your views of science are outside of the mainstream.

D: The mainstream is the establishment. The woke establishment is the problem. I don’t have any obligation to follow them when my review of the facts tells me something different.

C: Let’s move on to climate change wokeness. Do you think climate change is a hoax?

D: I’m not blind. I can see the effects of climate change. Scientists differ on whether it is man-made or not. I don’t think we can do anything about it without destroying our economy, which is based on the use of fossil fuels.

C: What do you say to the people who lose their homes and their family members in hurricanes caused by climate change?

D: I pray for them every day. It’s very sad. The government has an obligation to help them–at least if they don’t live in woke states. But we can’t throw millions of people out of good jobs trying to prevent hurricanes and wildfires, particularly when the Chinese are still putting money in coal-fired utilities.

C: So the victims are acceptable collateral damage?

D: I didn’t say that.

C: Yes, you did. Just not in so many words. Would you deny disaster relief funds to blue states until they take action against wokeness?

D: I would have to at least think about it. Wokeness has to go, whatever the cost. I will use all of the powers at my disposal to see that it does.

C: The automakers are all transitioning to electric vehicles. That is due in part to federal regulations, but mostly to public consciousness of climate change all over the world. It doesn’t make sense for America to position itself behind the curve when the Chinese, for example, are working hard on electric cars. Would you try to actually stop the transition, and turn America into an island of fossil fuel use?

D: At a minimum, I would cut off all Biden’s funding for the transition, and I would get rid of his regulations. After that, it’s up to the companies. Let the free market decide.

C: The record in Florida indicates that you are willing to spend at least some public funds for climate change mitigation.

D: That’s true. As I said, I’m not blind to the change. Mitigation is a reasonable and logical step to deal with it. I just don’t think prevention is workable.

C: Let’s move to racial wokeness.

D: OK.

C: I think you would agree that the focal point of your argument here is about systemic racism. You deny it exists, right?

D: Right. Unfortunately, there may be a few racists left in this country, but the system is not racist–at least, not today.

C: Let’s walk back through American history. We had slavery for about 250 years. It was enforced by the government. Is it possible to call that anything other than systemic racism?

D: No. Slavery was a tragedy, without a doubt.

C: After that, in the South, we had about 100 years of enforced segregation. All over the country, we had segregated schools and housing, redlining, and a variety of government programs, including entitlement programs, that discriminated against black people. Is that not systemic racism?

D: Yes, that was unfortunate, too. A few bad apples were in control. Fortunately, that changed.

C: Today, you can pick virtually any outcome you want, and black people are worse off than white people. How do you explain that other than to call it the vestiges of systemic racism?

D: Dr. King, who is a hero of mine, fought to make everyone equal under the law. He won. There has been no de jure segregation in this country since, say, the early 1970s. At that point, the job was done. Taking actions to favor one group over another is just racism by another name. It divides the country unnecessarily and makes white people who had no part in slavery or Jim Crow feel guilty. We need to put an end to that.

C: So how do you account for the differences in outcome that I described earlier?

D: It is perfectly possible for black people to get ahead in this country. Look at Obama. Look at Clarence Thomas, another of my heroes. That’s proof that there is no such thing as systemic racism.

C: So as long as a few exceptional people can get ahead, we shouldn’t look at the great mass of people who are left behind?

D: To discriminate against white and Asian people means a loss of freedom for them. Protecting freedom is more important than worrying about outcomes. In the long run, it will all balance out, anyway–at least, as long as we get rid of the hammock of dependency and affirmative action and make black people stand on their own two feet. We’ve had 50 years of misguided paternalism. Enough is enough.

C: Obviously, you hate affirmative action. Most affirmative action regulations operate in the private sector and in state and local governments. What would you do about them?

D: We have the power of the purse, which is the ultimate weapon. In addition, I will push the envelope as far as I can with my other legal powers. Biden does it; why shouldn’t I?

C: You see evidence of racial wokeness on the internet, on TV, in the MSM, and in the schools. How would you get rid of it without running afoul of the First Amendment?

D: First of all, we need a lot of new judges, including on the Supreme Court. Next, we need to use federal funding as a lever to put an end to wokeness. Finally, we need to use all of the powers at our disposal to regulate woke discussion in public.

C: What does that mean? Would you try to force the sale of the Times, for example, to Rupert Murdoch?

D: Why not? Viktor Orban would do it.

C: What leverage would you use?

D: We have the IRS, and we can change the libel laws.

C: You don’t have five votes on the Supreme Court to overturn Sullivan.

D: I’ll be working on that.

C: What would you do with the internet?

D: I think I can persuade the Court that the internet is qualitatively different from other forms of expression, so it can be censored without violating the First Amendment. Barring that, I can find some sort of emergency and use my emergency powers to get rid of harmful opinions on the web.

C: Would you prohibit students from using federal grants to attend woke schools?

D: Probably.

C: But what about their freedom to choose the right school for them?

D: Real freedom is based in truth. There is no freedom in following evil. The government isn’t obligated to give them that choice.

C: Let’s finish with sex and gender wokeness. Is it your opinion that being gay or lesbian is purely a choice?

D: The fact that the number of gays, lesbians, and trans people has increased recently suggests that it is, at least for the most part.

C: What do you want from gay people? What should be done with them?

D: They should be encouraged to turn away from sin and embrace the right path.

C: How? By conversion therapy? Does that really work?

D: My scientists say it does.

C: What if it doesn’t work? What’s Plan B?

D: Force them to go back in the closet. Stop being a pervert or a groomer. Keep it to yourself, and don’t endanger children.

C: Here’s a related question–would you use the overturning of the gay marriage decision as a litmus test for the selection of new Supreme Court justices?

D: Absolutely! The left does it all the time. We should be more open about doing it, instead of pretending that we’re open-minded on the subject.

C: Gay people suffer disproportionately from mental health problems due to their lack of acceptance in the community. Many of them try to commit suicide, and some succeed. What would you do to combat that?

D: Nothing. The objective is to stop them from choosing to be gay. Without the deterrent, they will just keep on being perverts and groomers.

C: And the same thing for trans people?

D: They’re even worse.

C: I think we’re done for today.

Both Trump and DeSantis have enemies lists, but they are different. Trump hates anyone who criticizes him or tries to prevent him from governing as the divine right ruler of America; DeSantis, on the other hand, despises people who are woke. It is the idea, not the person, that really draws his ire.

What does that mean for their governing styles? Trump will careen around like a pinball, attacking anyone who provokes him, regardless of party affiliation, while DeSantis will grimly and methodically use his executive powers to their utmost in order to root out any form of wokeness from our country. Both alternatives are awful, but they are not the same.

It is undisputed that the trust funds for the two big entitlement programs will be depleted in the foreseeable future, which means the programs will be cut significantly unless Congress takes action. Biden’s solution to the problem is sensible, if incomplete–impose the FICA tax on earnings over $400,000 per years. The two principal GOP contenders, one of whom has advocated for Social Security cuts in the past, have no plan other than to avoid benefit cuts. Biden figures to make a big issue of this during the general election campaign. What happens if he wins?

That will be up to the Republicans, who are badly split on the issue; the PBPs and CLs want benefit cuts and reject any tax increases, while the Reactionaries strongly support entitlements that are primarily earned by white Christian workers. In light of this, I suspect the GOP playbook will look something like this:

1. Support the creation of a bipartisan committee to study entitlement reform in the hope it will recommend cuts instead of tax increases, and the Democrats will be blamed for them;
2. If that doesn’t work, put off any action until the last minute, agree to fill in the gap with general revenues, and demand massive spending cuts in other programs to avoid an increase in the deficit. When the Democrats refuse, blame them for the entitlement cuts that follow.