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Ohio Gerrymanders; Missouri Pays Union Dues

Ohio is one of the worst gerrymandered states in the country. Although Republican Congressional candidates averaged 56 percent of the state-wide vote in the three elections from 2012 to 2016, Republicans won 75 percent of Ohio’s Congressional districts (12 of 16) all three times. No Congressional seat has changed party hands since 2012, the first election after the current districts took effect.

A quick look at the district maps shows how abusive the gerrymanders are. The 9th District, for example, delicately carves a long sliver of Democratic-leaning precincts stretching along the Lake Erie shoreline from Toledo to Cleveland. The district includes the presumably unpopulated Sandusky Bay in order to maintain the pretense of contiguity. The Cook Political Report gives the district a partisan lean of 14 percent more Democratic than the nation at large.

Conversely, the 6th District flows more than 250 miles down the Ohio River, from north of the tip of West Virginia to the southern tip of Ohio near Ironton, reaching out to grab passing Republican-leaning towns along the way. Cook rates the district 16 percent more Republican than the country as a whole.

The 12th District, site of yesterday’s Congressional special election, starts in northern Ohio, near Mansfield, slides southwest to central Ohio, where it scoops up enough of the Columbus area to dilute Democratic voting strength in metropolitan Columbus but not enough to turn the district Democratic, then shoots out to the southeast toward Zanesville, ending up as a jagged, irregular “J” tipped over on its back. The district’s pro-Republican lean is seven percent.

Gerrymandering was not the only curious feature of Ohio electoral practice on display in yesterday’s special election. Although the winner of the special election, which is too close to call pending counting of provisional and absentee ballots, will immediately take his seat in Congress, he will be up for re-election in November, just like every other member of the U.S. House of Representatives. Primary elections to pick the parties’ nominees to run in November were held on May 8. Perhaps not surprisingly, the primary winners were the same two candidates who duked it out in the special election yesterday. So for Ohio’s 12th District, the campaigning continues as if yesterday’s election didn’t even happen.

Donald Trump won the 12th District by 11 percent in 2016. So the good news for Democrats is that their candidate beat the Trump outcome by about 10 percent, and beat the partisan lean by about six percent. Although the Democratic candidate outraised and outspent the Republican candidate, the Republican candidate was propped up with considerable spending by national Republican organizations. In November, with all 435 House seats up for grabs, national party funding for this district will likely be considerably reduced. So the November re-run of yesterday’s special election may play out a little differently.

A quirk of Missouri election practice was also on display that state’s primary elections yesterday. Early in 2017, Missouri’s Republican-controlled legislature enacted, and its Republican governor signed, a “right-to-work” law. As with much in politics, labels can be misleading: a “right-to-work” law has nothing really to do with anyone’s legal right to work.

A “right-to-work” law is an anti-union measure dressed up as a workers’ rights measure – it entitles workers who are covered by collective bargaining to accept the benefits of collective bargaining agreements without paying dues to the unions that negotiate the agreements. If payment of union dues is not mandatory, union strength is diminished, both in collective bargaining and in other areas of union activity. And of course the point of “right-to-work” laws is precisely that, to diminish union strength, not to enhance workers’ rights.

Passage of Missouri’s “right-to-work” law provoked a furious backlash, resulting in collection of several times the number of voter signatures needed to invoke the state’s rarely used referendum procedure.

Which brings us to the Missouri quirk. The Missouri constitution provides for voter referendums to be held at the next “general election,” which occurs on “the first Tuesday after the first Monday in November in even-numbered years.” The constitution also prescribes the text to be used in petitions for voter referendums, and that text includes the statement that the referendum can be held other than at a “general election” if “the general assembly shall designate another date.”

The Missouri legislature – the “general assembly” – took a look at the election calendar and saw that incumbent Democratic Senator Claire McCaskill, who is fighting a tough re-election battle, will be on the November general election ballot. Legislators quite rightly foresaw that a voter referendum on the “right-to-work” law might arouse popular opposition, which in turn might boost pro-McCaskill turnout. So they “designated another date” – specifically, they designated yesterday’s primary election day, where increased Democratic turnout wouldn’t hurt anything Republicans cared about.

Missouri voters clobbered the “right-to-work” law yesterday, by more than a two-to-one margin. Voters cast 120,000 more votes in the referendum than in both parties’ senatorial primaries combined. In other words, Republican legislators were right to be concerned: the “right-to-work” law was highly unpopular with Missouri voters, and repeal of the “right-to-work” law drove those voters to the polls.

 

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Doing Unto Yourself as You Would Have Others Do Unto You

Modern American political culture lacks a sense of mutual obligation, a sense that we are our brothers’ keepers. American political culture has become a free-for-all of every man for himself. We loudly proclaim our right to do as we wish, without troubling too much over whether what we do is good for anyone besides ourselves. Figuratively speaking, at least, my right to swing my fist no longer necessarily ends at the tip of your nose. My private freedom of action is not moderated by the public damage my actions do. We object to the suggestion that government might restrain our actions, and we state the objection in dire terms: we stand for “liberty” and against “tyranny.”

For instance: an individual’s right to bear arms takes precedence over all other rights, including others’ right to be safe and secure from mass shootings. A country that doesn’t allow its citizens to arm themselves like Rambo is a tyranny, not a free country. The right to own unlicensed assault weapons with unlimited firepower and magazine capacity is essential to “liberty,” and the risk that proliferation of such weapons poses to the rest of society is of no concern.

“Stand your ground” laws, once the exception among American states, are now the rule. “Duty to retreat” laws were once regarded as a hallmark of civilized social interaction; stand your ground laws were remnants of the “wild west.” A duty to retreat law prohibits a person from using deadly force in self-defense if that person knows that he can escape the confrontation in complete personal safety; a stand your ground law allows that person to kill an attacker even if the person could safely flee. Thus the purpose of a stand your ground law is to preserve the fragile pride of a person who would rather take a life than flee a confrontation. But gun rights advocates have re-cast stand your ground laws as essential elements of individual freedom; a state that imposes a duty to retreat is a tyranny.

Based on the thinnest of evidence that vaccinations might pose a risk to the children who are vaccinated, anti-vaccination parents accept the benefits of “herd immunity” but refuse the obligations. And as the anti-vaccination movement grows, herd immunity erodes, reviving risks of epidemics that had been all but eliminated from this country. “Liberty” thus vests a person with the right to increase the quite real risk of deadly epidemics in order to protect that person from the quite probably imaginary risk of vaccination.

We eradicated small pox in this country in the 1950s and 1960s, and small pox vaccinations were discontinued for the general population in 1972. We wiped out polio by 1979. Today, we have the ability and resources to eradicate diseases like diphtheria, measles, pertussis, rubella and tetanus, but anti-vaccination parents are entitled to frustrate those efforts.

Freedom of religion used to be primarily a matter of a person’s private conscience. What was a right to believe and to worship as one chooses is now a right to behave toward others as one chooses, regardless of the consequences for those others. Freedom of religion thus entitles the religious to refuse to do business with people they disagree with. Bakers refuse to sell wedding cakes to prospective same-sex spouses; pharmacists refuse to dispense legal, medically necessary abortifacients; employers refuse to allow contraceptive coverage as part of their employees’ health insurance policies.

Home schooling has become popular as a means to avoid exposure of one’s children to teaching that a parent dislikes or disagrees with. To home schooling advocates, the right to control the ideas that are shared with one’s children pre-empts all other concerns; the social good that comes from children’s interaction with other children in a common setting is of no moment. A common civic education, however important to democracy, is subordinate to the parents’ right to decide how their children should think.

Although we say we are a country of “one person, one vote,” our modern concept of “liberty” has made us a country of “one dollar, one vote.” Billionaires so inclined are entitled to dominate discussion in the figurative public square. The damage that such narrow domination of public discussion does to democracy is of no concern; “liberty” requires that rich and poor alike be allowed to spend unlimited amounts to influence political outcomes, and the fact that the poor have nothing to spend is just too bad for them. The wealthy buy media outlets to propagate their views; as more billionaires buy more outlets, the Fourth Estate becomes not an organ of democratic self-government but an organ of propaganda to amplify the wealth and power of those who are already vastly wealthy and powerful.

Those powerful wealthy few thus obtain from our government tax reductions for themselves, and spending reductions for everyone else. Indeed the increasing concentration of wealth and power in ever fewer individuals, and the expansion of corporate power in the guise of enhanced corporate “liberty,” are probably the two greatest threats to liberal democracy in America.

In 1965, the ratio of the highest to lowest compensation paid at America’s largest companies was 20 to 1. Now the CEO-to-worker pay ratio is more than 300 to 1. From 1978 to 2014, CEOs’ inflation-adjusted compensation rose by 997 percent, compared to 11 percent for workers.

The federal minimum wage was last raised in 2009, to $7.25 an hour, but the real buying power of a federal minimum wage earner peaked 50 years ago, in 1968. Today’s full-time minimum wage employee makes about $15,000 a year, before taxes.

The highest marginal rate for individual federal income taxpayers was 70 percent as recently as 1980. The top rate has been below 50 percent since 1987. During World War I and for a few years thereafter, the top rate varied from 67 to 73 percent; during World War II, the top rate hit an all-time high 94 percent. During the war in Afghanistan, the top rate was lowered from 39.1 to 35 percent, where it remained throughout the second Iraq War.

The top .1 percent own as much as the bottom 90 percent, for the first time since the 1930s – the share of each group is now about 23 percent. The wealth share of the top .1 percent has risen steadily for the last 40 years, from a low of seven percent in the late 1970s. The share owned by the bottom 90 percent has fallen steadily, from a peak of 36 percent in the mid-1980s. The richest one percent of Americans now own nearly 39 percent of all American wealth, a historic record.

Financial assets are even more disproportionately the province of the wealthy. For instance, stock ownership (both directly and through investment vehicles like mutual funds and retirement accounts) is nearly universal among wealthy Americans, but much less common among other Americans. The wealthiest 20 percent own 92 percent of stock shares, meaning that the remaining 80 percent own just eight percent.

The unionization rate of American workers peaked at about 33 percent in the mid-1950s, and has dropped by half since 1980, from 20.1 to 10.7 percent. As unionization has declined, the share of American workers covered by traditional “defined benefit” pension plans has also dropped. Whereas 67 percent of unionized private sector workers have pension plans, only 13 percent of non-union workers have them. (Seventy-eight percent of government workers still enjoy defined benefit pension plans, and of course those are under attack.) Overall, only 18 percent of private sector workers have access to pension plans.

As traditional pensions have gone out of favor with corporate employers, “defined contribution” plans like 401(k) accounts have come into favor. Many of these are fully funded by employee contributions, although some employers match at least some of those contributions. Sixty-two percent of workers have access to these plans, although only 44 percent actually participate in them. For low income workers, participation rates are nearly negligible: 19 percent of workers in the lowest 25 percent of income, and 12 percent in the lowest 10 percent. Only 17 percent of part-time workers participate in defined benefit plans.

In other words, companies no longer reward dedicated long-term service with financially secure retirements, at least not for their wage-earning employees.

In about 20 years, the Social Security trust fund will be exhausted, and benefits payments will be made solely from current Social Security tax payments – meaning that benefits will have to be reduced by about 25 percent.

Thirty-six percent of American workers have saved less than $1,000 toward their retirements; 60 percent have saved less than $25,000. The decline of labor unions, the stagnation of workers’ wages, the erosion of the real federal minimum wage, the decline in defined benefit plans, the poor participation rates for defined contribution plans, the low savings rates of low-income workers, and the unwillingness of Congress to fully fund future Social Security benefits together risk a return to the pre-New Deal days of widespread poverty among our senior citizens.

In other times, a foreseeable social calamity of this magnitude would get a strong social response. Such a social response would involve some form of sharing. Relatively small decreases in corporate profits and shareholder dividends could fund increased wages, and revival of defined benefit pension plans or increased matching of contributions to defined contribution plans. Relatively small increases in Social Security taxes on upper income earners would fully fund future social security benefits. In 2018, the maximum salary subject to Social Security tax is $128,400 – an employee making that much pays the same Social Security tax as a CEO making 100 times that much.

If endangered species protections marginally reduce corporate profits, the answer is to get rid of endangered species protections. If fuel efficiency standards marginally reduce profits, the answer is to reduce fuel efficiency standards. If limits on arsenic in drinking water marginally reduce profits, the answer is to raise the limits on dumping arsenic. If reducing the risk of climate change-induced disasters marginally reduces profits, the answer is to deny that risk. If maintenance of efficient public infrastructure requires taxation that marginally reduces profits, the answer is to let public infrastructure rot.

Where private activity imposes costs on the public, today’s answer is that private profits should not be made to yield to public benefit – reducing private profits to pay public costs is tyranny. The public interest in clean air and drinkable water, the public interest in maintaining global temperature and sea levels, the public interest in maintaining natural wonders for recreation and enjoyment – all must yield to corporate “liberty.”

We have stretched our concepts of legal rights and acceptable behavior to allow individuals and corporations an ever-increasing breadth within which they may act without regard to the consequences their actions impose on others. We’ve become a “might makes right” culture – those who can, take, and those who can’t take get taken, and too bad for them. “Gimme more” is the new American golden rule. Greed is not just good, it’s a fundamental element of liberty. Constraints on greed are tyranny.

Righting our democracy requires that we recalibrate our appeal to self-interest, to moderate greed with a sense of social obligation. Our leaders should be able to call on us, without subjecting themselves to ridicule and derision, to ask just a little less often what our country can do for us, and just a little more often what we can do for our country.

 

 

Who is David Brat?

OK, quick – no fair Googling – who is David Brat?

Virginia’s congressional 7th District was held by Democrats from 1871 to 1971, except for three brief periods totaling just five years. In 1971, Republican Kenneth Robinson succeeded conservative Democrat John Marsh, Jr., and the seat has been held by Republicans ever since.

A safe seat for either party allows an ambitious occupant of that seat to gain seniority and rise into the ranks of party leadership in the House of Representatives. Thus Eric Cantor, who was elected to Congress from Virginia’s 7th District in 2000, became the chief deputy Republican whip in 2003, the whip in 2009, and the Republican leader in 2011.

Cantor beat all challengers by wide margins. His 2012 Republican primary opponent mustered just 21 percent of the vote. Cantor was young, and his grip on the seat was firm. He was well on way to becoming the speaker of the House.

In 2014, Cantor was challenged in the Republican primary by David Brat, a political novice who had tried for public office only once before – an unsuccessful shot at a seat in the Virginia House of Delegates in 2011. Cantor outspent Brat by 40 to 1, but Brat won the primary by a dozen points. Party leaders very, very rarely lose primary campaigns. No House majority leader had lost a primary in the history of the position, which dates to 1899. Brat’s win was huge, and the more astute among the political commentariat correctly saw in Brat’s win the foreshadowing of a broader populist movement within the Republican Party.

Alexandria Ocasio-Cortez similarly took Democratic Congressman Joseph Crowley by surprise in a Democratic primary this year. A political novice, Ocasio-Cortez was badly outspent by Crowley, the chairman of the House Democratic Caucus and the chairman of the Queens County Democratic Party. But she beat him on the ground, appealing to a district that has become half Hispanic, and especially appealing to the part of the district that lies in the Bronx, where Crowley’s presence was so rare that a Bronx politician teased him when he showed up for an event there that he “must have gotten a new GPS.”

As with Brat’s upset of Cantor, Ocasio-Cortez’s upset of Crowley generated lavish attention from the political commentariat. In particular, Ocasio-Cortez’s self-description as a Democratic Socialist grabbed pundits’ notice: from the right, as a club to beat all Democrats with, and from the left, as a warning to moderate Democrats. The problem, of course, is that Ocasio-Cortez is not a socialist, Democratic or otherwise.

The core belief of an actual socialist is that the means of production, and perhaps even all property, should be collectively controlled, not privately owned – and Ocasio-Cortez believes no such thing. (Neither does Vermont Senator Bernie Sanders, who also enjoys provoking with the “socialist” label.) Ocasio-Cortez’s platform is well within the Democratic mainstream, albeit distinctly on the party’s left wing. She wants to tax wealthy individuals and corporations to pay for social programs like universal health care. In other words, she doesn’t want to abolish private enterprise; she wants to harvest its benefits for progressive social ends.

Watch the beginning of Trevor Noah’s recent interview with Ocasio-Cortez, where he asked her directly what she means by the term “Democratic Socialist.” Her answer was about health care and education, and she cited as national role models the United Kingdom and Canada – two very vigorously capitalist countries – in preference to Venezuela and Cuba, options offered to her by Noah.

Full disclosure: I voted for Ocasio-Cortez, not because of her Democratic Socialist label, and not to make any kind of statement about national Democratic Party leadership – although I do think that Democrats would do well to bring new faces, new ideas, and new energy into their leadership. I voted for Ocasio-Cortez because I agree with her positions on the issues that I regard as among the most important, like health care, education, immigration and social justice. And I voted for Ocasio-Cortez because I am confident that her positions will not cost Democrats the district in the November general election.

Like David Brat, Alexandria Ocasio-Cortez beat a powerful, entrenched incumbent because she is a better fit for the district’s current political and demographic composition. But while Brat’s upset of Cantor foreshadowed a broad Republican shift from conventional post-Reagan Republican politics, I don’t think Ocasio-Cortez’s upset of Crowley foreshadows a broad rejection of modern Democratic norms and values, and most certainly does not predict a Democratic movement toward socialism.

David Brat is running for his third term in Congress. Four years after his splashy arrival in Washington, he has reverted to obscurity. Meanwhile, his district’s Republican lean has moderated: the Cook Political Report gives his district a pro-Republican lean of just six percent, which is well within the margin of this year’s pro-Democratic polling shift. Cook rates Brat’s 2018 re-election race a toss-up.

Ocasio-Cortez is obviously smart, capable and well-spoken, and a convincing majority of her district’s Democratic voters preferred her to the long-known quantity of the incumbent. But that doesn’t make her the leading edge of a national trend.

 

My World Cup

The World Cup of soccer is a great international experience. Every four years, 32 national teams compete in a month-long series of games, culminating in a world championship that gives even the poorest and humblest of the winning team’s countrymen four years’ worth of bragging rights over the entire world. The 2018 championship game was played today, between the national teams of France and Croatia, in Moscow.

The sport is known as “soccer” in the United States, but as “football” in much of the rest of the world. Even the French, who ordinarily get rather testy about the immigration of English words, call the sport “football.” So do the Germans. In the Spanish-speaking world, it’s “futbol.” Many languages have their own terms for the sport, words that are not imported versions of English words. In Indonesian, for example, the sport is called “bola sepak.” But even then, for the most part, when people in those countries speak in English about the sport, they call it “football,” not “soccer.”

Our few terminological allies share our need to distinguish soccer from another sport that is locally known as “football.” In the U.S. and Canada, “football” is the game played with a prolate spheroid-shaped ball, in which two teams each field eleven players at a time, the teams in turn trying to advance the ball toward a goal line and opposing that advance.

In Australia, “football” is a rugby-like game called “Australian rules football” that combines the pace of soccer with the violence of American football. Australians rarely call Australian rules football by its actual name, because Australians rarely call anything by its actual name. In Australia, if it’s worth talking about at all, it’s worth shortening its name – my personal favorite being “breaky,” because, one knows, it’s just so much more trouble to say “breakfast.” So when Australians talk about Australian rules football, they call it “Aussie football,” or just “footy.” In any event, if you mention soccer to an Australian, he’ll know what you’re talking about.

Growing up in small-town America, I had relatively little exposure to soccer, and none at all to the World Cup. Only when I moved to New York did I realize what a world-wide spectacle the event is. After I got out of law school, I moved to a multi-ethnic neighborhood with a substantial Hispanic population – and Latinos are among New York’s most ardent World Cup fans. The 1982 World Cup was played in Spain and won by Italy. Latin American teams did relatively poorly that year – still, the event drew lots of vocal interest in sports bars, restaurants and social clubs around my neighborhood.

Four years later, when the Argentinian team won the final, my neighborhood erupted in a cacophony of celebratory horn-honking, noise-making and flag-waving. By comparison, the Times Square celebration of VE Day was just a small gathering of close friends. The Argentinian population of my neighborhood must have been second only to Buenos Aires that day. Either every Argentinian-American within a hundred miles had flocked here for the game, or else the entire Hispanic population had become honorary Argentinians for a day, or maybe both.

In 1988, I met the Colombian-American who would become my domestic partner and later my spouse. He is a life-long soccer fan and World Cup fanatic, and I caught the bug. I was already a sports fan, so I lacked immunity to the World Cup virus.

In 1995, my spouse and I took a vacation trip to his native Colombia, during the Copa America – a soccer tournament then played every other year. We spent a week on a farm near the small town of Filandia, and the caretaker of the farm invited us to a day-long barbecue at another farm a few miles away. That day was the Copa America third-place match, and it was between Colombia and the United States. I was the only American – the only non-Colombian – at the barbecue, and the Colombians rooted loud and hard for the Colombian team. I do root for American teams for whatever typically short time they remain in the running, but the Colombian fans attributed to me an ardency of fandom that matched theirs and far exceeded my own.

I dutifully played my role, but internally I rooted for Colombia, for the wholly pragmatic reason that I wasn’t sure how friendly the international rivalry would remain if the team of the gringo visitor beat the team of my hosts. And although American national soccer teams do not have the storied history of the great South American and European soccer powers, there was a real chance of American victory that day. The American team had done well in the previous year’s World Cup, which was hosted by the United States – including a 2 – 1 U.S. win over Colombia that kept the Colombian team from advancing to the second round of play.

Fortunately, the Colombian team beat the American team for third place in the 1995 Copa America. I made the required show of patriotic disgruntlement, but I was genuinely glad to take some ribbing from the Colombian fans.

Two of our later vacations coincided with World Cup tournaments. In 1998, my spouse and I spent four weeks in France – the first two weeks in Paris, before the World Cup games began, then two weeks in Brittany and the Alsace during first-round competition. Paris was decked out for the event, and public service announcements were everywhere, reminding Parisians to be nice to foreigners, and to be understanding of their infacility with French. (Parisians do need to be reminded.)

The Place de la Concorde, the largest Parisian square, was under construction to serve as the centerpiece of the opening ceremonies; the ancient Egyptian obelisk in the square was covered by a metal frame that would ultimately support a giant stylized soccer ball on the top of the obelisk.

We watched the opening ceremonies from our gite de France in Brittany; it was ceremony as perhaps only Parisians can do ceremony. Four gigantic soccer players led four columns as from the four corners of the earth, parading to their ultimate meeting in the Place de la Concorde, in a convergence of great sport, great artistry, great history and great culture.

During our stay in the Alsace, we spent a day in Basel, Switzerland. During the afternoon, we came across an international food festival, with rows of tents housing pop-up restaurants of national cuisines from around the world. As we explored, we heard – faintly at first – merengue music, signaling that a Dominican Republic food tent was nearby. We followed the music and found the tent, where a muted television played a World Cup game between Nigeria and another team. As we ate, and watched, and listened to the merengue, we were joined by a Swiss man. Conversing with us first in English, he learned that my spouse is Colombian-American, and then conversing with us in Spanish, he told us about his Peruvian wife and their travels in Peru.

It was one of the great international experiences of my life: sitting with my Colombian-born partner in a Dominican Republic food tent in Switzerland, watching the Nigerian team competing in the World Cup in France and chatting with an English-speaking, Spanish-speaking Swiss man who was married to a Peruvian-born woman.

We had a similar experience in Reykjavik, in 2010, while the World Cup was being played in South Africa – the World Cup that gave the world the vuvuzela. In particular I remember having lunch in the Café Paris, chatting in English with a Danish couple at the next table, while a World Cup match (I don’t remember which teams) played in the background.

There was a Brazilian sports bar that was, as I remember it, on the main street of Reykjavik. You might need a moment, as we did, to absorb the concept of a Brazilian sports bar in Iceland. My spouse and I stopped in, because that’s what one does when one comes across a Brazilian sports bar in Iceland.

Later during the same vacation, in the little town of Isafjordur, we came across a restaurant that billed itself “the northernmost Indian restaurant in the world,” and we stopped in there as well – because how could we not? We also came across a restaurant that billed itself as “Balkan,” where our conversation with the Bulgarian-Icelandic owner-cook-waitress led to our visit a few months later to Nessebar, Bulgaria, a beautiful little city of Byzantine ruins on a little spit of land sticking out into the Black Sea.

The Brazilian sports bar was filled with Brazilians, an unlikely gathering so close to the Arctic Circle. Apparently every Brazilian in the entire country had come to this bar, where we watched the Brazilian team beat the North Korean team, 2 – 1. We came across no North Korean partisans, or at least none who would confess to it.

I think the World Cup is more of an international experience even than the Olympics. In the Olympics, a national team competes in every event for which its athletes have qualified. Even national teams that win no medals, and may have no real hope to win any medals, are still able to compete right up to the very last day of the games. Therefore fans root for their countries’ teams throughout the competition.

In the World Cup, only 32 countries’ teams qualify for the event in the first place, and teams are eliminated as the competition progresses. True soccer fans remain involved in the premier event of the sport, whether or not their country’s team qualifies for the competition, and even after their country’s team is eliminated from the competition.

Therefore unlike the Olympics, by the end of the World Cup most of the world’s soccer fans are rooting for teams other than their own national teams. Personally, after the United States is out of the running, I tend to root for whichever team is the underdog – so I cheered Croatia’s knife-edge defeat of Russia last week, and I cheered for them in today’s final against France.

My spouse tends to root for other Latin American teams once Colombia is eliminated – although he has a soft spot for teams that include the world’s great stars, like the Portuguese team, whose star is Cristiano Ronaldo dos Santos Aveiro, universally known simply as Ronaldo.

Rooting for a team representing a country other than one’s own seems to me to be an emblematic international experience. I’m not talking about “tactical” rooting, when a fan of one team roots for another team in a particular game, because that team’s win will advance the prospects of the fan’s own team. That’s just “enemy of my enemy” fandom. I’m talking about “devotional” rooting, when a fan whose own team is out of the competition transfers true loyalty to another team.

France beat Croatia today, 4 – 2. It’s the second World Cup title for France; it would have been Croatia’s first. The French team includes players with last names like Rami, Umtiti, N’Zonzi, Mbappe, Griezmann, Hernandez and Fekir, whereas the Croatian team is essentially mono-ethnic. So the French victory is in its way a victory for internationalism.

 

Mueller’s Second Indictment of Russian Conspirators

Just a few days ago I commented that Department of Justice Special Counsel Robert Mueller’s Russia investigation is primarily a counter-intelligence investigation. I said it was likely that the investigation had learned much more than had yet been publicly revealed.

I based that observation on publicly available information indicating that the Russian attack on our 2016 presidential elections had three major criminal components: a social media-centered disinformation campaign that involved use of stolen Americans’ identities, wire fraud, and bank fraud; the hacking and theft of e-mails and other documents from Hillary Clinton’s campaign and from Democratic Party organizations; and a series of intrusions into state voter databases and other election systems.

The disinformation campaign was the subject of Mueller’s indictment of 13 Russian individuals and three Russian companies last February. That indictment revealed a disinformation campaign that was years in the planning, well funded, sophisticated and complex, and well executed. The indictment also implied, without saying so directly, that the disinformation campaign was directed by, or at least approved at, high levels of the Russian government. The indictment adopted the characterization of the campaign given by one of the defendants’: “information warfare against the United States” – “warfare” being the key word.

Yesterday Mueller brought charges relating to the other two main components of the publicly known Russian criminal attacks: his grand jury indicted 12 more Russians on charges relating to the hacking and theft of documents from the Clinton campaign and from Democratic organizations, and the intrusions into state election systems and voter databases. Like the February indictment, this one alleges a sophisticated, well planned effort, approved at if not directed from high levels of the Russian government.

As has been the rule for Mueller’s indictments, this indictment’s narrative goes beyond the allegations narrowly necessary to support the stated criminal charges. In support of the criminal charges, the indictment details hacking and document theft operations from March 2016 to October 2016. But the indictment mentions in passing that the defendants had hacked and stolen “emails from individuals Affiliated with the Republican Party” – an allegation already in the public domain. The indictment says that the Republican hacking occurred “in 2015” – suggesting, without providing detail, that the Russian election hackers were at work well before the outcomes of the 2016 presidential primaries were apparent, and suggesting further that Mueller may have more charges in store regarding pre-2016 hacking by Russians.

Perhaps the most disturbing part of this indictment is the charge that Russian hackers attacked the election systems and voter databases, from June 2016 to November 2016. Their preferred method of attack was “spearphishing.” A spearphish is an e-mail sent to a targeted individual in an effort to gain access to the target’s computer, either by obtaining account passwords or by planting malware in the target’s computer. The spearphish e-mail may contain an attachment and instruct the target to open it, or it may include a website link and direct the target to click on the link. Either way, if the target does as asked, the attack is successful. The spearphish often includes “spoofing” – disguising the e-mail as a security alert emphasizing the urgent need to follow the e-mail’s instructions in order to protect the user’s computer or data.

The indictment indicates that Russian spearphishing attacks were quite effective. What’s concerning to me is that I’ve seen no federal-level effort over the last 18 months, and precious little state-level effort, to protect the very same systems and databases that were compromised in 2016 from further attacks in 2018. Of course there would be good reason to install anti-hacking measures quietly – the last thing computer security managers want is for hackers to know the details of system protections and safeguards. Still, I’m concerned that the Republican Party line, being that Russian hacking either didn’t happen or was ineffectual, may have deterred Republican-controlled state governments from taking strong action to defeat future hacking, in apparent contradiction of the party line.

Media commentators have appropriately given much attention to the allegation in the indictment that hacking of a domain hosted by a third-party provider used by Hillary Clinton’s “personal office” began within hours of Donald Trump’s infamous call on July 27, 2016, for Russians, “if you’re listening,” to find her “missing” e-mails. (The “missing” e-mails were those that Clinton’s legal staff did not include, on grounds that they were personal and not work-related, in a turn-over of e-mails to the State Department from her private server.) The suggestion is that Trump’s public request triggered a Russian search for the “missing” e-mails.

I’m skeptical. Given the sophistication of the Russian hacking enterprise, it’s inconceivable to me that the Russians needed Donald Trump to give them the idea to search for the “missing” Clinton e-mails. Of course it’s possible that causation went the other way around – that Trump knew or suspected that Russians were about to hack Clinton’s e-mail network, triggering his public statement. But that scenario makes little sense either. Certainly if the Trump campaign were working covertly with the Russians, such a public call seems like a hugely unwarranted risk of exposure.

What stands out to me about the allegation is that it is unnecessary to the criminal charges set forth in the indictment. The allegation is made in this paragraph:

“The Conspirators spearphished individuals affiliated with the Clinton Campaign throughout the summer of 2016. For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.”

In other words, the July 27 hacking is given as an example of a broader effort to spearphish the Clinton campaign. That implies that Mueller’s investigators know about other examples, yet they chose this one for inclusion in the indictment. Furthermore, even if it was necessary to include the July 27 example, it was unnecessary to specify that the July 27 hacking attempt was made “after hours,” or that it was the “first time” that Russian hackers had attacked Clinton’s e-mail domain.

I’ve said that Mueller’s history of integrity is such that I don’t believe he manipulates indictments for political purposes. But I also don’t think that this informational tidbit made its way into the indictment without any purpose. Something is behind this, and for now we’ll just have to wait to find out what it is.

Many media commentators have talked about the possible relationship between the two events of July 27, 2016. Fewer commentators have picked up on another “coincidence” of timing. The indictment alleges that, on June 8, 2016, the Russian hackers set up the dcleaks.com web site, the DCLeaks Facebook page, and the Twitter account @dcleaks, as part of the Russian campaign to release Democratic campaign documents they had stolen. It was on June 9, 2016, that Donald Trump, Jr., Paul Manafort, and Jared Kushner met with Russians at Trump Tower in the expectation of receiving incriminating information about Clinton from the Russian government.

The Trump Tower meeting has always been something of a mystery: why would the Russian government go to the trouble of setting up and attending a meeting for the purpose of passing useful campaign information to the Trump campaign, but not provide the promised information to the campaign? I see two possible explanations.

The first is one I hypothesized at the time: that the meeting was not actually for the purpose of passing information to the Trump campaign, but was a “dangle.” In counter-intelligence parlance, a “dangle” is a test of a person’s interest in assisting the tester – in this case, to see whether the Trump campaign would take an opportunity to advance their electoral prospects, even if that opportunity required the illegal acceptance of assistance from the Russian government. If that was the Russians’ purpose, the effort was hugely successful: the Trump Jr. took the bait, the hook, the line and the sinker, and so did Manafort and Kushner. What the Russians may have done with that information remains unknown.

This indictment suggests another possibility for the meeting. The indictment alleges that, having compiled quite a mass of campaign documents, the Russians were looking for a way to release them. Rob Goldstone sent his now famous e-mail to Trump Jr. on June 3, 2016, asking for the Trump Tower meeting. Goldstone was acting at the request of the popular Russian singer Emin Agalarov, whose father, Aras Agalarov, is a real estate tycoon closely tied to Russian president Vladimir Putin. With that many degrees of separation between the Russian hacking campaign and Goldstone, the idea for the Trump Tower meeting must have originated days, if not weeks, before Goldstone actually sent his June 3 e-mail.

So the possibility exists that the Russians actually planned, or at least considered, releasing stolen documents to the Trump campaign well before the Trump Tower meeting actually happened, but that in that protracted interim they changed their minds, perhaps because they found a better way to release the documents. In this scenario, the Russians went forward with the Trump Tower meeting, but instead of sending useful campaign documents, they sent Natalia Veselnitskaya to complain about sanctions imposed against Russians by the Magnitsky Act.

The indictment raises one more matter of timing that hasn’t received any notice at all in the commentary I’ve seen. The indictment alleges that the Russian hackers began planning for the release of stolen documents no later than April 2016. It was on April 26, 2016, that George Papadopolous, a minor Trump campaign advisor, learned from one of his Russian contacts that the Russian government had Moscow had “dirt” on Hillary Clinton, in the form of “thousands of emails.”

I commented at the time that the FBI’s “statement of the offense,” which Papadopolous signed as part of his plea deal, seemed to be “deliberately ambiguous” about what happened next. I found it hard to believe that a wannabe like Papadopolous would not try to pump up his importance within the campaign by passing on the tip that Russians had a ton of dirt on Hillary Clinton. But the FBI statement of Papadopolous’s offense, while explicitly recounting how Papadopolous passed on other information he received, said nothing explicit about what he did with the April 26 information that Moscow had “dirt” on Clinton.

If Russian hackers began by April 2016 to look for ways to disseminate their stolen documents, it is possible that the approach to Papadopolous was part of that search – that the Russians seriously considered Papadopolous as a vehicle, or at least a facilitator, for such dissemination. If so, it appears that they decided against it, and I’ve speculated that they found Papadopolous to be the lightweight that he is, and therefore not the man they wanted to deal with. Of course there’s also the possibility that the Papadopolous contact was a dangle, that it produced sufficiently positive results to encourage the Russians to move up the chain to the top ranks of the Trump campaign, and thus to the Trump Tower meeting.

However seriously the Russians took Papadopolous, the indictment suggests that Mueller may consider Papadopolous to be a more important figure than has been publicly realized. Nine months after his guilty plea, Papadopolous has yet to be sentenced, implying that he is still providing Mueller’s investigation with useful information. The media has paid a fair amount of attention to the delays in Michael Flynn’s sentencing, but none I’ve seen to the delays in Papadopolous’s sentencing.

If, as seems likely, Papadopolous took the April 26 tip back to the Trump campaign, and if the campaign gave him a green light to pursue the matter – or if Papadopolous pursued it on his own – he presumably had further communications with Russian representatives about the Clinton “dirt.” Such further communications might explain why Mueller’s need for his cooperation has lasted this long. Whether the Mueller investigation will eventually produce charges that Trump campaign representatives engaged in “collusion” with Russian election interference may thus depend more than we previously realized on the minor functionary, George Papadopolous.

The indictment leaves a number of “undropped shoes” – so many that the undropped shoe has been the metaphor of choice for political commentators this weekend. One undropped shoe is the Russian hacking of Republican National Committee in 2015. We can only speculate why Mueller didn’t include that in the indictment – maybe he’s still unraveling exactly who did the hacking, when and how; maybe he’s withholding that indictment to avoid alerting investigative targets to the status of his investigation.

After the DCLeaks operation was exposed, the Russian hackers created the Guccifer 2.0 persona for further releases of stolen documents, including the handover of e-mails to WikiLeaks, which released them in 33 batches from October 6 to November 7, 2016.

One release of stolen documents was to an unidentified Congressional candidate, who asked Guccifer 2.0 for documents about the candidate’s opponent; Guccifer 2.0 complied. Guccifer 2.0 was posing as a Romanian individual, and the Russian hackers went to some lengths to make that pose seem authentic, so it’s not self-evident that a candidate who asked Guccifer 2.0 for stolen documents knew that the request was made to Russians. Still, the indictment indicates that the unnamed candidate solicited the receipt of stolen information, which is almost certainly a crime, and even if the candidate thought that Guccifer 2.0 was Romanian and not Russian, still the candidate was soliciting campaign assistance from a foreign national, which is also almost certainly a crime: another undropped shoe.

The indictment alleges that the defendants “communicated with U. S. persons about the release of stolen documents.” The indictment specifies only one set of such communications, in August and September 2016, with an unnamed “U. S. person” widely believed to be Trump advisor Roger Stone. The indictment quotes two requests from Guccifer 2.0 to the “U. S. person” for an assessment of stolen documents posted publicly by Guccifer 2.0. The only response quoted in the indictment is, “pretty standard,” presumably meaning that the information in the stolen document in question was not noteworthy.

The indictment quotes a third communication from Guccifer 2.0 to the U. S. person: “please tell me if i can help u anyhow . . . it would be a great pleasure to me.” Again, the indictment does not allege that Stone knew he was dealing with Russians, but given Guccifer 2.0’s pose as a Romanian national, Stone must have known he wasn’t dealing with an American. Even if he bought Guccifer 2.0’s pose as a Romanian national, he must have known that he was being offered “help” by a foreign national, and, in context, it’s quite likely that Stone knew that the “help” offered related to the presidential campaign – which makes Roger Stone an undropped shoe. Some commentators have made much of the fact that Stone, despite his obvious importance to the Mueller investigation, has not been interviewed yet. Those commentators are inferring that Mueller’s team is deferring Stone until it has tightly wrapped up a case against him.

Finally, the indictment refers several times to unnamed, unindicted co-conspirators, both “known and unknown.” The previous indictment of Russians who ran the disinformation campaign similarly referred to other conspirators “known and unknown.” Obviously we have no way to know why those who are “known” weren’t indicted, and whether those who are “unknown” may yet become known – the last undropped shoe for today.

Announcing yesterday’s indictment, Deputy Attorney General Rod Rosenstein repeated the disclaimer he made in announcing the February indictment against the other group of Russians: the indictment makes no allegation that the Russian attacks had any impact on the 2016 presidential elections. And my response to that disclaimer is the same as my response to the same disclaimer last February.

The February indictment alleged that the Russians executed a well planned, well funded, long-term campaign of social media posting and advertising, supplemented by campaign rallies successfully promoted on-line. Yesterday’s indictment alleges that the Russians executed a well planned, well funded, long-term campaign of hacking the computers and networks of Democratic campaign officials and stealing huge volumes of documents, then developing and executing a long-term strategy of releasing those documents to the public.

Political campaigns pay good money for these kinds of activities: for advertising, rallies, and opposition research. Campaigns pay good money for these activities because it is universally believed that these activities influence voting. The possibility that zero voters were influenced by the Russian campaign is nil; it is certain that the Russian attacks had some effect. The fact that it is impossible to measure the size of that effect in no way implies that there was no effect.

I am quite certain that the Russian attacks had an effect on the 2016 presidential vote. Given the razor thin margin of the popular vote in the states that were decisive in the electoral vote, I think it is very possible that the Russian attacks made the difference between a Hillary Clinton presidency and a Donald Trump presidency.

Republicans who would wish away the Mueller investigation should be careful what they wish for. The intelligence consensus is that an important goal of the Russian attacks was to sew discord among Americans, to weaken faith in our electoral processes and therefore to weaken our faith in democracy itself. If that consensus is correct, then it is not self-evident that the next Russian attack will be against Democrats. It is plausible that Russians will determine that their interest in fostering American chaos is better served by promoting Democratic majorities in Congress, threatening to grind American national government to a halt.

 

Supreme Diversity

Until recently, membership in the elite corps of United States Supreme Court justices was almost exclusively limited to white Protestant men. Protestants held their majority for more than 200 years; white men hold theirs to this day.

Of the 113 justices who have served, 110 of them have been non-Hispanic white. In all of the Court’s 229-year history, only two African-Americans have served: Thurgood Marshall and Clarence Thomas. Marshall and Thomas served sequentially, so there have never been two African-American justices at the same time. Sonia Sotomayor is the only Hispanic justice to have served. No Asian-American and no Native American has ever been appointed.

Only four women have donned the black robe, all within the last 37 years: Ruth Ginsburg, Elena Kagan, Sandra O’Connor, and Sotomayor. The Court had two women on the bench from 1993, when Ginsburg was appointed, until 2006, when O’Connor retired. Ginsburg was then joined by Sotomayor in 2009, and, since Kagan’s appointment in 2010 there have been an unprecedented three women on the Court.

The first Jewish justice was Louis Brandeis, who took his seat in 1916. There were two Jewish justices twice in the 1930s, when Benjamin Cardozo overlapped at the beginning of his tenure with Brandeis, and at the end of his tenure with Felix Frankfurter. Not until 1994 did the Court again have two Jewish justices at the same time – when Stephen Breyer joined Ruth Ginsburg. Since 2010, there have been an unprecedented three Jews on the Court: Breyer, Ginsburg and Kagan.

Other than Christianity and Judaism, no faith has ever been represented on the Court.

Among Christians, Protestants were predominant until quite recently. Catholic justices were rare in the 1800s. Roger Taney was first, becoming chief justice in 1836. There weren’t two Catholic justices at the same time until 1898, when Joseph McKenna joined Edward White. It happened again when Warren Harding put Pierce Butler on the Court two years before McKenna retired. It didn’t happen a third time until 1986, when Antonin Scalia joined William Brennan.

Beginning with Scalia, five of eleven Supreme Court appointees have been Catholics. That’s not counting Thomas, who was raised as a Catholic, converted as a young man to his wife’s Protestant faith, then re-converted to Catholicism in the mid-1990s. It’s also not counting Neil Gorsuch, who was raised Catholic but married an Anglican woman and has attended Episcopalian services for about 17 years. Gorsuch speaks generally of his faith, but does not specify his religion. Even close friends and relatives don’t know whether Gorsuch considers himself to be Catholic or Episcopalian. Either way, Gorsuch counts among the Christian majority.

With Samuel Alito’s appointment in 2006, Catholic justices became a majority, and have held the majority since then.

Of Christian faiths, Mormons stand out perhaps most prominently as unrepresented on the Court. By contrast, for example, to the U. S. Senate, where 17 Mormons have served, including six current senators, there has never been a Mormon Supreme Court justice.

Only one justice declared himself to have no religious affiliation: David Davis, who was one of Abraham Lincoln’s appointees to the Court.

Protestants lost their Supreme Court majority upon Thomas’s conversion to Catholicism in 1995 or 1996. With the possible exception of Gorsuch, there hasn’t been a Protestant appointee since then. The last definitely Protestant appointee was David Souter, nominated in 1990 by George H. W. Bush.

Finally, of course, there has never been an openly gay justice. There have been speculations about the Court’s five life-long bachelors, perhaps most credibly about Frank Murphy, a Franklin Roosevelt appointee whose 40-year friendship with a fellow bachelor was documented in the 2001 book Courting Justice: Gay Men and Lesbians v. the Supreme Court.

Confirmation of Brett Kavanaugh’s nomination to replace Anthony Kennedy will change the Court’s ideology significantly, but it will change the Court’s demographics only by reducing the justices’ average age from 69 to 65 years. Kavanaugh, like Kennedy, is a Catholic non-Hispanic white man. If confirmed, Kavanaugh will be the Court’s 114th justice: its 111th non-Hispanic white, 110th male and 105th Christian justice.

 

 

The Conservative Supreme Court

With Brett Kavanaugh’s nomination to succeed Anthony Kennedy on the U.S. Supreme Court, Republicans hope to secure the most conservative Supreme Court since Franklin Roosevelt’s first term, when the Court invalidated much of FDR’s New Deal legislation. Driving opposition to the New Deal were four reactionaries nicknamed the Four Horsemen of the Apocalypse: Willis Van Devanter, appointed by President William Taft; James McReynolds, a Woodrow Wilson appointee; and Pierce Butler and George Sutherland, who were Warren Harding’s selections.

Not until his second term, in 1937, did Roosevelt get his first Supreme Court vacancy, created by Van Devanter’s retirement. Ultimately FDR made nine appointments to the Court, more than any other president besides George Washington, who, after all, was starting from scratch.

Media commentators’ consensus seems to be that conservative interest groups have orchestrated a highly successful 30-year campaign to move the Court to the kind of hard-right conservatism that is now in sight. But in truth the success of that campaign owes a fair amount to luck.

On the question of luck and the Supreme Court, I’ve observed that the last chief justice to be appointed by a Democrat was Fred Vinson, appointed by Harry Truman in 1946. All four of Vinson’s successors have been Republican appointees. And the only president in American history to serve a full four-year term and appoint no Supreme Court justices was Democrat Jimmy Carter. (By contrast, the nearly equally luckless Republican one-termer William Taft got to appoint six justices.)

Although Democrats have held the White House for 16 of the last 30 years, Democrats have been able to make just four out of ten Supreme Court appointments during that time. The numbers would have been even, five to five, had Republicans not refused to consider Barack Obama’s final nominee, Merrick Garland. But even that tactical success is indebted to luck: had Justice Antonin Scalia died a year or two earlier, it’s much less likely that even Senate Majority Leader Mitch McConnell would have had been able to hold the seat open through the rest of Barack Obama’s presidency.

The average age of Supreme Court justices when the last five presidents took office was just over 65 years. The average age as of the inauguration of the three Republicans (65) was actually slightly lower than for the two Democrats (66). But the number of justices over 80 years old on Inauguration Day has distinctly favored Republican presidents: six for Republicans and two for Democrats, and, not surprisingly, which justices are over 80 on a president’s first Inauguration Day turns out to be a pretty good predictor of which justices that president will get to replace.

So the really bad news is that with Kennedy’s departure there is only one octogenarian left on the Court – liberal stalwart Ruth Ginsburg, at 84 years old. Liberal Justice Stephen Breyer will be 80 next month, whereas the oldest conservative justice is Clarence Thomas, who is only 70 years old even though he’s been on the Court for almost 27 years.

In one respect, Republicans have been more tactical than Democrats in selecting their Supreme Court nominees. The average age of the six Republican appointees in the last 30 years (counting Kavanaugh) was just over 50, whereas the average age of the four Democratic appointees was just over 55. Democratic appointees ranged from 50 years old (Elena Kagan) to 60 years old (Ginsburg); Republican appointees ranged from 43 (Thomas) to 55 (Samuel Alito).

Whether younger appointees will serve longer tenures on average remains to be seen. The only one of the last ten Supreme Court appointees to leave the Court so far, David Souter, was just 51 years old at appointment but served only 19 years on the court. By contrast, Ginsburg and Breyer were nine and five years older at appointment, and have so far served 25 and 24 years.

I’ve said that Donald Trump’s Supreme Court will be the most conservative since the early 1930s. A lot of attention has justly been given to the risks such a Court poses to abortion rights, gay rights, voting rights and immigration rights. I think it’s useful to consider some of the New Deal-era decisions driven by the Four Horsemen in gauging the magnitude of the risks a Trump Court might pose.

One of my personal favorite New Deal-era decisions is Morehead v. New York, in which a five-to-four Supreme Court majority invalidated a minimum wage law because it interfered, without sufficient justification, with “the right to make contracts,” a right that is “part of the liberty protected by the due process clause” of the Fourteenth Amendment to the Constitution. For the majority, Justice Butler wrote:

“Within this liberty are provisions of contracts between employer and employee fixing the wages to be paid. In making contracts of employment, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining.”

In other words, employer and employee equally enjoy the constitutional right to bargain the terms of employment contracts, and as a general matter legislatures may not impose terms on those contracts. Equality of bargaining rights supersedes inequality of bargaining power.

The Supreme Court’s anti-New Deal and anti-regulatory decisions were largely overruled in the late 1930s. And modern economics has given us a much more sophisticated understanding than the Four Horsemen enjoyed about the vulnerabilities created by the inequality of bargaining power between employer and employee. So it is tempting to dismiss the possibility that even a Trump Court would restore pre-New Deal jurisprudence.

But we should underestimate neither modern conservatives’ determination to expand freedom of corporate action nor their willingness to subordinate concern for individual well-being to their concern for corporate “liberty.” Modern conservatives, after all, have devised a new constitutional right to discriminate in the name of religion – an achievement that would have awed and inspired opponents of 1960s-era civil rights laws. We owe to modern conservatives the corrosive theories that spending money constitutes constitutionally protected speech, and that corporations are people who enjoy First Amendment rights fully equal to the First Amendment rights of actual people – two theories that serve to concentrate enormous political power in the hands of the very rich – who, not at all coincidentally, are predominantly conservative and use their concentration of power to further conservative causes. To modern conservatives, private might makes right, and government intervention to mitigate the consequences of private inequality, especially economic inequality, is generally impermissible.

Conservative zeal to overturn Roe v. Wade is unhindered by the fact that Roe is a precedent of 45 years’ standing. If 45 years is not enough time to put Roe beyond their reach, why would 80 years’ standing put New Deal-era precedents out of range? Even before Justice Kennedy’s departure, the Supreme Court upended 80 years of constitutional precedent to conclude that the individual mandate in the Affordable Care Act exceeded Congressional authority to regulate commerce, in a five-to-four decision that Justice Ginsburg, in dissent, compared to the Four Horsemen’s pre-New Deal decisions. (The Affordable Care Act survived because a five-to-four majority of justices found that the individual mandate was a valid exercise of Congressional authority to impose taxes.)

Brett Kavanaugh is considered to be an “originalist,” as was Justice Scalia and as are Justices Neil Gorsuch and Clarence Thomas. An originalist claims to find the meaning of a constitutional provision in the intentions of those who wrote and ratified the provision and in the prevailing understanding of the constitutional provision at the time of its ratification. Even if a constitutional provision uses a term the common meaning of which evolves over time – like “unreasonable,” or “cruel and unusual” – the meaning of the constitutional provision remains what it was when it was ratified.

Whatever its merits as a legal philosophy or as a theory of constitutional interpretation, originalism minimizes the value of precedent. If an originalist believes that a Supreme Court precedent is not consistent with the constitutional text or contemporaneous understanding of the text, then the precedent is vulnerable, and vulnerability does not diminish with age. Originalism thus re-opens every constitutional issue for re-litigation, no matter how well- or long-settled the issue was.

Although its advocates present originalism as neutral and objective, divorced from the political ideologies and policy preferences of its practitioners, originalists almost always come out on the conservative side of constitutional questions. Even the originalist’s supposed commitment to constitutional text is no barrier to achieving the originalist’s ideological goals. Originalists were able to conclude, for instance, that the right to bear arms has nothing to do with a well-regulated militia.

With a minimum of effort, an originalist can put together an argument that many of the Supreme Court’s equal protection and due process precedents fall beyond the intentions of those who wrote and ratified the Fourteenth Amendment. An originalist can put together an argument that many of the Supreme Court’s precedents on criminal trial procedure and protections of criminal defendants were not intended by those who wrote and ratified the Bill of Rights.

So it’s not just abortion rights, gay rights, voting rights, and immigration rights that are threatened by a Donald Trump Court. Every constitutional right, every constitutional rule, is now officially up for grabs.

 

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