Conservatives really, really hated the 1960s. They hated the long hair, the music, the pot smoking, the freedom of expression, and the interracial relationships. They hated the feds enforcing voting rights and integration. They hated the idea of a woman boss. Or two men holding hands in public. Or Black people in public office. They hated to pay taxes for a social safety net instead of a military-industrial complex. (That the bulk of tax dollars fed a vast military machine and a pittance supported the vulnerable was no consolation.)
American society has become more diverse, integrated, and technologically advanced over the last fifty years; economic opportunities spread more widely than in the past. American culture—music, art, education—was admired and emulated by the rest of the world. No matter. America’s reactionaries multiplied their hatreds and nursed their grievances. They came up with a plan, raised money, and created organizations to reverse “The Sixties.” But democratic means were not reliable for reactionary ends. A majority of the country had no desire to return to racial apartheid, leaded gasoline, and bank panics. The electorate preferred public-oriented policies that protected water quality, bodily autonomy, and air travel. And America’s conservatives reactionaries were disadvantaged in the electoral arena because their policies—tax cuts for rich people, environmental spoliation, and defunding Medicare were highly unpopular. Anti-1960s reactionaries, therefore, chose to pursue their interests by capturing the federal courts. Their prime target was the Supreme Court of the United States (SCOTUS), whose judges are appointed for life and whose opinions bind the government. By stacking the court, an extremist coalition of plutocrats, theocrats, and nativists could dominate the country.
Monday’s breaking news: the six radical rightwingers on the Supreme Court grant former President Trump immunity from prosecution and forbid the government from using evidence of Trump’s corrupt intent at trial. This is a great victory for the former president and will complicate the Justice Department’s prosecution of Trump for instigating the January 6, 2021 insurrection. According to constitutional law professor (emeritus) Lawrence Tribe, the Court’s ruling in Trump v. the United States nullifies the rule of law. According to historian Heather Cox Richardson, SCOTUS “destroyed the principle on which this nation was founded, that all people in the United States of America should be equal before the law.” This is horrible.
While the Supreme Court ruling complicates Trump’s legal cases, it doesn’t immediately affect how the rest of us live. No, it was last week’s horrible decision (Loper Bright Enterprises v. Raimondo) overturning “Chevron deference” that can kill us. Loper Bright opened the floodgates to all kinds of harm—concrete effects that will be felt by everyone. And soon. That’s what I will explain today.
America’s backlash movement unites many constituencies hoping to turn back the clock. Unified in their hatred of liberals (and hippies, Blacks, gays, independent women, etc.) they organize around two poles of angst: cultural aggrievement and insatiable greed.
Cultural reactionaries have already reached their long-lusted-after goal, the dismantling of Roe v Wade which sent abortion law “back to the states.” Now they want to revive the zombie Comstock Act of 1873 to enact a national abortion ban, criminalize sending “obscene” materials through the mail, and outlaw mailing drugs like mifepristone and, hey—Viagra would qualify, too.
Financial reactionaries, jealous of their reactionary fellow travelers in the Kultur division, pursued the judicial ruling of their dreams. They wanted their own Dobbs and now they have it: Loper Bright Enterprises v. Raimondo. On June 28, the Supreme Court decided that subject matter experts within government agencies could no longer be permitted to use scientific evidence and public input in rule-making. “The courts may not defer to an agency interpretation of the law simply because a statute is ambiguous,” saith the Supremes. The principle of “Chevron deference” is out. Judges will decide what the rules will be for medical research, air quality, fire safety, worker protection, corporate mergers, and on and on.
Chevron deference allowed agencies to use their expertise to determine how to carry out laws passed by Congress — laws intended to keep our air and water clean, our drugs safe and effective and our securities markets protected from fraud and deception.
The Supreme Court has now decreed that it, rather than agencies staffed by individuals with deep subject matter expertise and answerable to presidential appointees, will be the final arbiter of the meaning of every statute passed by Congress.
The ground was laid for this judicial power grab in 1971 by Supreme Court Justice Lewis Powell, Jr. A corporate lawyer supporting conservative business interests before ascending to the Court, Powell represented the Tobacco Institute and opposed many civil rights advancements.
Political scientist Don Moynihan explains the infamous Powell Memo, which provided the road map to our current destination:
In 1971, Lewis Powell wrote a memo that bemoaned the attacks on business interests. But he also mapped out a response.
‘Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.’
The Powell doctrine offered a roadmap by which money could became organizational and political capacity, and then, political power.
This was the “anti-New Deal blueprint for conservative business interests to retake America.” Powell’s blueprint provided the construction plans: for so-called “think tanks” like the Heritage Foundation, American Enterprise Institute, the Manhattan Institute; and lobbying groups like the Federalist Society, American Legislative Exchange Council, and the National Rifle Association. Well-funded by rightwing billionaires, reactionaries expanded their reach over the decades using populist messaging through talk radio and cable news outlets.
And so here we are. Cultural reactionaries got their win with Dobbs and their financial brethren got theirs with Lober Bright. These SCOTUS decisions are two sides of the same coin.
This was a Supreme court that was built to do two things: remove federal abortion protections and dismantle state capacity. It has done both.
Marci Harris, an expert on Congressional modernization, described the end of Chevron deference as “Dobbs for the administrative state.” And indeed, there are some real observations about some parallels between Dobbs and the attack on the administrative state. Neither are broadly popular, . . . they have used [the courts] to frustrate popular will and [dismantle] previously constructed democratic means of governing. [Justices] increasingly show themselves to be unmoored from traditional legal reasoning and practice, such as stare decisis, as they impose their Federalist Society theories on society. If conservatism means incremental change, nothing about this is conservative.
It is not conservative. It is extremist, hateful, fascist. It is an attempt to push the rest of us back to a time when we had fewer rights. No right to rent an apartment where we want to live, no right to love who we love, no right to express our talents through work we choose, no right to be ourselves.
Here is one way to understand America today. A group of wealthy people were deeply unhappy about democratic institutions holding them accountable. So they set out to make them less democratic and less powerful. They used their money to make money the most essential currency in this democracy, more important than votes.
How did they succeed?
They realized that politicians, while valuable, could be unreliable. Better to capture the least democratically accountable seat of public power — the courts — and use that to weaken public oversight over their interests.
The extent of corruption by the extremist justices who form the majority of the Supreme Court is almost unfathomable.
“There are days that I’ve come to my office after an announcement of a case and closed my door and cried,” Sotomayor told the Radcliffe Institute for Advanced Study at Harvard University, where she received an award Friday. “There have been those days. And there are likely to be more.”
I don’t have a light-hearted story to end with today. Maybe this will help:
Related Grounded articles:
What Could Go Right? (June 11, 2024
Brain Surgery by Bus Drivers* (June 18, 2024)
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Notes:
Meghan Bartels, A Supreme Court Ruling May Make It Harder for Government Agencies to Use Good Science
John Fritze, Justice Sotomayor describes crying after some Supreme Court decisions.
Jodi Kantor and Adam Liptak, Behind the Scenes at the Dismantling of Roe v. Wade.
Don Moynihan, The Money Coup.
SCOTUSblog, Loper Bright v Raimondo.
Kate Shaw, The Imperial Supreme Court. (NYT gift link.)
Carter Sherman, Democrats move to repeal 1873 law they say could pave way for national abortion ban.
Perry Stein, Justice Sotomayor dissent: ‘The President is now a king above the law’.
Trump v. United States, 603 U. S. ___(2024)
Hitler knew that the key to his power was to control the courts. So did the Heritage Foundation et.al.. This plan was a long game that was played, with Democrats naively choosing judges that were actually impartial jurists, Republicans were choosing those with a patina of impartiality but who were secretly members of these "think tanks". These judges were never vetted for their membership in these societies and the Senate took them at their word. The LIFETIME appointees knowingly lied during their confirmation hearings (remember Anita Hill testifying at Clarence Thomas' confirmation hearing and how no one in the Senate believed her and jump forward to Christine Blasey-Ford and Brett Kavanaugh) and were paid handsomely for their accomplishment. Now, the deck is sufficiently stacked that it is going to take DECADES to undo the harm. Their needs to be a major restructuring of the courts (NO lifetime appointments and, perhaps, expansion of SCOTUS) to undo the damage to democracy they have created. The last time this type of court happened, it took a CIVIL WAR to bring about the change. And the America the founders envisioned barely survived that war. Will our democratic republic survive this court, with or without a war? Democrats better realize that voting itself is NOT enough to change our trajectory. And thaat despite his age, Biden is the biggest threat to the Republican plan, no matter his age!
I used to compare these Spremes to the Taliban judges, but that was unfair to the Taliban judges.
Sure, they both share a love of Theocratic Kakistocracy, twisted logic, and cherry picking/making up history from 300-1400 years ago. But at least the Taliban judges have high approval ratings, and they are not whores.
Our Supreme geniuses who know nothing about science and history have appointed themselves arbiters of all that is true. They managed to write an opinion the other day about laughing gas (nitrous oxide) while the scientists testified about poisons (nitrogen oxide).