Fascists New Favorite Phrase: "Due Process Rights"
Last night, the Washington Post published an analysis by Dan Balz of what the illegitimate Trump Court is doing to tear the country apart: The Supreme Court rolls back a right and inflames a divided country. “The implications,” he wrote, “are both staggering and impossible to predict, other than that ending the right to abortion will have profound effects on women while adding to the cultural and political balkanization of America… Dobbs v. Jackson Women’s Health Organization will… be remembered for a historic reversal of a constitutional right enshrined for half a century and for further inflaming an already deeply divided country. By overturning Roe v. Wade and ending the guaranteed right to abortion nationwide, the court’s newly entrenched conservative bloc has set the country on a course toward legal and political warfare destined to last for years, a conflict perhaps even more intense than the one that has raged since Roe was decided in 1973. The implications of the court’s ruling… could be felt as well by others who now fear their rights are in danger, particularly those in the LGBTQ community. The longer-term effects could further separate the country into culturally divided red and blue enclaves, with sharply different laws and rights, adding to the balkanization of the United States.”
In his separate opinion on Friday, Clarence Thomas, the most ideologically unhinged of the 6 anti-democratic justices, urged the court to apply the “due process clause” excuse they used to overturn Roe to other landmark cases, (including, presumably, the one that guarantees interracial marriage (Loving v Virginia), like his own, although the rights he’s most gun-ho on gutting are those of the LGBTQ community. “In future cases, we should reconsider all of this Court’s substantive due process precedents,” he wrote, “including Griswold [contraception], Lawrence [homosexuality], and Obergefell [marriage equality].”
John Kruzel, reporting this morning for The Hill, wrote that Thomas and the other fascists on the illegitimate court don’t want to waste time in forcing their primitive, reactionary ideology on the country, no matter how unreceptive normal Americans are. He quoted Robert Tsai, a law professor at Boston University: “The 6-3 majority feel that they have a narrow window to do all the things important to the conservative legal movement. You never know when the window will close and so they are acting with urgency.” Which is more than I can say for Biden. Yesterday, AOC demanded he set up abortion clinics on federal lands in red states. Crickets.
This week marked a breakthrough moment for the conservative legal movement’s well-funded and norm-shattering effort to groom a generation of conservative lawyers, elevate reliable allies to the Supreme Court and reshape American life in fundamental ways.
For decades, Roe v. Wade had been in conservative cross hairs, with Republican Party elites seizing on the issue of abortion to unify social conservatives and evangelical Christians. Friday’s toppling of the landmark 1973 ruling marked a crowning achievement that left abortion opponents electrified.
…But the decision, which most Americans said they would oppose, also ignited a political firestorm as the dismantlement of abortion rights began to unfold in states within hours of the ruling. As women across the country find themselves barred from terminating an unwanted pregnancy, court watchers said, public confidence in the Supreme Court that is already at historic lows is likely to sink further.
…Legal experts said the ruling raised legitimate questions about whether rights that are seen as having a thin historical record and which are not explicitly referenced in the Constitution— so-called unenumerated rights— remained on firm footing after Friday’s decision.
Just a day earlier, Thomas wrote the majority opinion striking down a New York state law that made it difficult to obtain a permit to carry a handgun outside the home.
The ruling broke along ideological lines, with the court’s six conservatives joining Thomas, who wrote that the Second Amendment protects “an individual’s right to carry a handgun for self-defense outside the home.”
That decision will almost certainly render unconstitutional similar restrictions in more than a half dozen other states and could hamper efforts to pass modern gun control measures.
“This is an enormously broad opinion with regard to Second Amendment methodology,” said Joseph Blocher, a law professor at Duke University.
“Here, the majority has essentially rejected the approach unanimously adopted by the federal courts of appeals in favor of a hyper-originalist focus on whether contemporary gun laws are, in the court’s view, consistent with tradition,” he said. “And that is a big, big change.”
Earlier this week, the justices in another 6-3 vote struck down a Maine education policy that made schools with religious instruction ineligible for taxpayer-backed tuition aid. The ruling continued the conservative majority court’s general trend of ruling for religious interests.
Chief Justice John Roberts, writing for the majority, held that a tuition fund program that is available to secular schools must also be made available to religious schools.
Sotomayor, the Supreme Court’s most outspoken liberal, accused the court’s conservatives in a dissent of “dismantling” the barrier between church and state.
Katherine Franke, a law professor at Columbia University, said the decision had far-reaching implications for religious liberty rights. Prior to Tuesday’s ruling, she said, a state choosing not to fund a religious organization was generally considered a lawful form of neutrality.
“Now, inaction counts as discrimination,” she said. “This idea developed 30 years ago— that not funding religion is a form of discrimination against religion. It’s taken a while for that idea to get traction, and it’s now the law of the land.”
As the nation reckoned with a country undergoing transformational changes at the hands of six life-tenured judges, some longtime court watchers said this week was a stark illustration of a Supreme Court aggressively pursuing conservative agenda items.
“The decisions this week must be understood as a conservative majority favoring conservative political ideology: requiring aid for religious instruction, greatly expanding gun rights, ending abortion rights,” said Erwin Chemerinsky, dean of the University of California Berkeley School of Law.
“It is not about judicial philosophy or constitutional interpretation,” he said. “It is about conservatives moving constitutional law very far and very fast in a very conservative direction.”
McCarthy and the Republicans are salivating at the prospect of cynically using inflation and general dissatisfaction with a doddering and incompetent president—second worst in contemporary history— to seize control of Congress and ban abortion, and other freedoms, nationally. Yesterday, CNN reported that “Some House Republicans who oppose abortion rights are pushing legislation to implement a nationwide abortion ban at 15 weeks, coming just hours after the Supreme Court released its opinion overturning Roe v. Wade. The push for such a ban is a notable effort given that Republicans have a strong chance to take back control of the House in this year's midterms, and House Minority Leader Kevin McCarthy expressed support for the idea on Friday.
CNN reported that Ann Wagner (R-MO), a supposed “moderate” from the St. Louis suburbs told them that “she has reassurance that one of the very first bills a GOP-led House would vote on is some cfarckpot bill she wrote with no meaning except to throw a sop to anti-Choice fanatics.” Some of the top supporters of a national15-week ban include radical seditionists Gym Jordan of Ohio, who is in line to replace Jerry Nadler as chair the House Judiciary Committee, Jim Banks of Indiana, who chairs the conservative Republican Study Committee and Mike Johnson of Louisiana, a member of GOP leadership. There are already more than 100 Republicans who are co-sponsoring a bill that would prohibit abortions once cardiac activity is detected, the most radical anti-Choice plan by the far yet.
In his Atlantic column this morning, Ron Brownstein warned that all this extremism on the right is so divisive that the country could literally fall apart [exactly what Putin was bargaining for when he helped Trump into the White House]. The U.S. may already be “two blocs as fundamentally different nations uneasily sharing the same geographic space [with] pressure on the country’s fundamental cohesion… likely to continue ratcheting up in the 2020s.”
He wrote that the MAGA movement, “the U.S. equivalent to the authoritarian parties in places such as Hungary and Venezuela… is a multipronged, fundamentally antidemocratic movement that has built a solidifying base of institutional support through conservative media networks, evangelical churches, wealthy Republican donors, GOP elected officials, paramilitary white-nationalist groups, and a mass public following. And it is determined to impose its policy and social vision on the entire country— with or without majority support. ‘The structural attacks on our institutions that paved the way for Trump’s candidacy will continue to progress,’ [union strategist Michael] Podhorzer argues, ‘with or without him at the helm.’”
All of this is fueling what I’ve called “the great divergence” now under way between red and blue states. This divergence itself creates enormous strain on the country’s cohesion, but more and more even that looks like only a way station. What’s becoming clearer over time is that the Trump-era GOP is hoping to use its electoral dominance of the red states, the small-state bias in the Electoral College and the Senate, and the GOP-appointed majority on the Supreme Court to impose its economic and social model on the entire nation—with or without majority public support. As measured on fronts including the January 6 insurrection, the procession of Republican 2020 election deniers running for offices that would provide them with control over the 2024 electoral machinery, and the systematic advance of a Republican agenda by the Supreme Court, the underlying political question of the 2020s remains whether majority rule— and democracy as we’ve known it— can survive this offensive.
...The increasing divergence—and antagonism—between the red nation and the blue nation is a defining characteristic of 21st-century America. That’s a reversal from the middle decades of the 20th century, when the basic trend was toward greater convergence.
One element of that convergence came through what legal scholars call the “rights revolution.” That was the succession of actions from Congress and the Supreme Court, mostly beginning in the 1960s, that strengthened the floor of nationwide rights and reduced the ability of states to curtail those rights. (Key moments in that revolution included the passage of the Civil Rights and Voting Rights Acts and the Supreme Court decisions striking down state bans on contraception, interracial marriage, abortion, and, much later, prohibitions against same-sex intimate relations and marriage.)
Simultaneously, the regional differences were moderated by waves of national investment, including the New Deal spending on rural electrification, the Tennessee Valley Authority, agricultural price supports, and Social Security during the 1930s, and the Great Society programs that provided federal aid for K–12 schools and higher education, as well as Medicare and Medicaid.
The impact of these investments (as well as massive defense spending across both periods) on states that had historically spent little on public services and economic development helped steadily narrow the gap in per capita income between the states of the old Confederacy and the rest of the country from the 1930s until about 1980. That progress, though, stopped after 1980, and the gap remained roughly unchanged for the next three decades. Since about 2008, Podhorzer calculates, the southern states at the heart of the red nation have again fallen further behind the blue nation in per capita income.
Jake Grumbach, a University of Washington political scientist who studies the differences among states, told me that red states, as a group, are falling behind blue states on a broad range of economic and social outcomes— including economic productivity, family income, life expectancy, and “deaths of despair” from the opioid crisis and alcoholism.
...The gross domestic product per person and the median household income are now both more than 25 percent greater in the blue section than in the red, according to Podhorzer’s calculations. The share of kids in poverty is more than 20 percent lower in the blue section than red, and the share of working households with incomes below the poverty line is nearly 40 percent lower. Health outcomes are diverging too. Gun deaths are almost twice as high per capita in the red places as in the blue, as is the maternal mortality rate. The COVID vaccination rate is about 20 percent higher in the blue section, and the per capita COVID death rate is about 20 percent higher in the red. Life expectancy is nearly three years greater in the blue (80.1 years) than the red (77.4) states. (On most of these measures, the purple states, fittingly, fall somewhere in between.)
Per capita spending on elementary and secondary education is almost 50 percent higher in the blue states compared with red. All of the blue states have expanded access to Medicaid under the Affordable Care Act, while about 60 percent of the total red-nation population lives in states that have refused to do so. All of the blue states have set a minimum wage higher than the federal level of $7.25, while only about one-third of the red-state residents live in places that have done so. Right-to-work laws are common in the red states and nonexistent in the blue, with the result that the latter have a much higher share of unionized workers than the former. No state in the blue section has a law on the books banning abortion before fetal viability, while almost all of the red states are poised to restrict abortion rights if the Republican-appointed Supreme Court majority, as expected, overturns Roe v. Wade. Almost all of the red states have also passed “stand your ground” laws backed by the National Rifle Association, which provide a legal defense for those who use weapons against a perceived threat, while none of the blue states have done so.
The flurry of socially conservative laws that red states have passed since 2021, on issues such as abortion; classroom discussions of race, gender, and sexual orientation; and LGBTQ rights, is widening this split. No Democratic-controlled state has passed any of those measures.
Lilliana Mason, a Johns Hopkins University political scientist, told me that the experience of Jim Crow segregation offers an important reference point for understanding how far red states might take this movement to roll back civil rights and liberties— not that they literally would seek to restore segregation, but that they are comfortable with “a time when states” had laws so “entirely different” that they created a form of domestic apartheid. As the distance widens between the two sections, she said, “there are all kinds of potential for really deep disruptions, social disruptions, that aren’t just about our feelings and our opinions.”
To Podhorzer, the growing separation means that after the period of fading distinctions, bedrock differences dating back to the country’s founding are resurfacing. And one crucial element of that, he argues, is the return of what he calls “one-party rule in the red nation.”
With some complex but telling statistical calculations, he documents a return to historical patterns from the Jim Crow era in which the dominant party (segregationist Democrats then, conservative Republicans now) has skewed the playing field to achieve a level of political dominance in the red nation far beyond its level of popular support. Undergirding that advantage, he argues, are laws that make registering or voting in many of the red states more difficult, and severe gerrymanders that have allowed Republicans to virtually lock in indefinite control of many state legislatures. Grumbach reached a similar conclusion in a recent paper analyzing trends in small-d democracy across the states. “It’s a really stacked deck in these states because of this democratic backsliding,” Grumbach said.
...[I]n the last years before the Civil War, the South’s political orientation was offensive: Through the courts (the 1857 Dred Scott decision) and in Congress (the Kansas-Nebraska Act in 1854), its principal aim was to authorize the expansion of slavery into more territories and states. Rather than just protecting slavery within their borders, the Southern states sought to control federal policy to impose their vision across more of the nation, including, potentially, to the point of overriding the prohibitions against slavery in the free states.
It seems unlikely that the Trump-era Republicans installing the policy priorities of their preponderantly white and Christian coalition across the red states will be satisfied just setting the rules in the places now under their control. Podhorzer, like Mason and Grumbach, believes that the MAGA movement’s long-term goal is to tilt the electoral rules in enough states to make winning Congress or the White House almost impossible for Democrats. Then, with support from the GOP-appointed majority on the Supreme Court, Republicans could impose red-state values and programs nationwide, even if most Americans oppose them. The “MAGA movement is not stopping at the borders of the states it already controls,” Podhorzer writes. “It seeks to conquer as much territory as possible by any means possible.”
The Trump model, in other words, is more the South in 1850 than the South in 1950, more John Calhoun than Richard Russell. (Some red-state Republicans are even distantly echoing Calhoun in promising to nullify— that is, defy— federal laws with which they disagree.) That doesn’t mean that Americans are condemned to fight one another again as they did after the 1850s. But it does mean that the 2020s may bring the greatest threats to the country’s basic stability since those dark and tumultuous years.