Yes, the WaPo posted an article with the subhed “The data show that #yesallwomen would be safer hitched to their baby daddies.”
I would hope most of our audience can immediately see what’s wrong with this, but just in case see Tara Culp-Ressler.
My first objection to Rob Hunter’s recent piece on the Supreme Court was its somewhat unsophisticated assumption of a zero-sum relationship between the Supreme Court and the elected branches. There is, however, an even bigger problem of unsophisticated zero-sum assumptions: namely, an anachronistic, pre-Rights At Work theory of the relationship between litigation and political activism:
The original defenders of judicial review were conservatives who distrusted democracy. Today, the importance of relying on the Supreme Court to act as a brake on democratic politics is an accepted article of faith in liberal political philosophy. Pursuing progressive policy through appellate litigation is central to the strategies of an array of liberal political organizations. Democratic presidential candidates promise to appoint judges who will defend decisions like Roe v. Wade and strike down decisions like Citizens United, but they don’t promise to lead movements to expand and guarantee meaningful access to abortion, or to curb the usurpation of democratic prerogatives by plutocrats and personified corporations. Technocratic liberalism has eclipsed the vistas of deepened democracy and full social freedom that were glimpsed, however dimly, during episodes like Reconstruction and the civil rights movements of the twentieth century.
There is another approach to constitutional politics, however; one known to the Left: the expression of constituent power. That means articulating grievances, confronting opponents, and promoting solidarity. These forms of politics are constitutive of alternative regimes and counter-institutions, and express the Left’s challenge to ossified constitutional discourses of procedure and formal rights. But so long as liberals remain attached to the Supreme Court’s aura of authority and finality, they will fail to see what political theorist Chantal Mouffe has called “the constitutive character of social division.” Such division and antagonism are central to democracy.
Organizing large coalitions and confronting powerful institutions should be at the forefront of democratic politics — not judicial subtlety and clever interpretations of superannuated texts. Durable abortion rights are more likely to be secured through a broad coalition demanding universal access to single-payer healthcare than through appeals to protect the legacy of Roe. The reform of racist and violent policing through judicial interpretations of the Fourth Amendment is meaningless in the absence of the political will to bring paramilitarized cops to heel. Confronting patterns of gross inequality with respect to gender and sexuality is a project best pursued through intersectional alliances, not disputes over constitutional doctrine.
A few observations:
Would American politics be better without judicial review? Possibly! But it’s there; as long as it is, there’s no reason not to use litigation in contexts where it could work. The cards will almost always be stacked against progressive change, no matter how much change is demanded or how many alliances form. To leave tools that can sometimes work in the toolbox is a terrible idea. There’s nothing emancipatory about telling women and gays and lesbians that they should wait for the Single Payer and Many Other Ponies Act Of Sometime After We’re All Dead Act to pass instead of using strategies that can achieve important goals in the shorter term.
As Krugman notes, it already happened, and workers lost in a rout:
Consider, in particular, the much-hyped “war on coal.” It’s true that getting serious about global warming means, above all, cutting back on (and eventually eliminating) coal-fired power, which would hurt regions of the country that depend on coal-mining jobs. What’s rarely pointed out is how few such jobs still exist.
Once upon a time King Coal was indeed a major employer: At the end of the 1970s there were more than 250,000 coal miners in America. Since then, however, coal employment has fallen by two-thirds, not because output is down — it’s up, substantially — but because most coal now comes from strip mines that require very few workers. At this point, coal mining accounts for only one-sixteenth of 1 percent of overall U.S. employment; shutting down the whole industry would eliminate fewer jobs than America lost in an average week during the Great Recession of 2007-9.
Or put it this way: The real war on coal, or at least on coal workers, took place a generation ago, waged not by liberal environmentalists but by the coal industry itself. And coal workers lost.
Climate change trooferism isn’t about protecting jobs.
Always up for a piece noting the Supreme Court’s largely negative history, I was disappointed by Rob Hunter’s piece in a couple respects. I’ll leave the question of political strategy and what progressives should do about judicial review to another post. Here, I want to focus on the need to analyses of judicial review to take into account how the practice actually works.
One problem with the argument is reveled early, with the old “attribute an bad argument to an entire group of people”:
Liberals lambasted Roberts for arguing in bad faith, but in reality they share his vision. In the liberal political imagination, the Supreme Court is an institution that must vindicate principles rather than practice politics. As the philosopher Richard Rorty once acknowledged, liberals “turn to the judiciary as the only political institution for which we can still feel something like awe. This awe … is respect for the ability of decent men and women to sit down around tables, argue things out, and arrive at a reasonable consensus.”
Unless a simple-minded caricatures of Ronald Dworkin and arguments made by Richard Rorty that Rorty himself has repudiated define “the liberal imagination,” the point isn’t really worth engaging with. Most actually existing liberals in 2014 believe in some form of legal realism, and the liberals who regard the Supreme Court with “awe” are similarly thin on the ground.
On the more specific claims, as is often the case the discussion of Dred Scott reveals some flawed ways of thinking about the Supreme Court as well as more implicit attacks of strawman:
Before the Civil War, the Court largely refrained from invalidating congressional legislation on constitutional grounds. The only important such episode was Chief Justice Roger Taney’s decision in Dred Scott v. Sandford. Taney wrote that Congress could not forbid the extension of slavery into the territories, and added infamously that constitutional protections applied only to whites. Dred Scott foreshadowed the most obvious and frequent future use of judicial review: protecting constitutional boundaries against the incursions of democratic politics.
Dred Scott was not undone through another decision, but through victory over the seceding states. America’s bourgeois revolution — the mobilization and death of hundreds of thousands of soldiers, along with the emergence of a federal government with truly national prerogatives and powers — was what ended slavery, rather than the deliberations of nine old men in robes. The federal government’s victory in the Civil War was memorialized by the Thirteenth, Fourteenth, and Fifteenth Amendments, which established the primacy of a national conception of citizenship over the semi-feudal patchwork of citizenship rights of the antebellum republic.
A few points:
I’m also puzzled by some of the argument about Reconstruction:
But the ink had barely dried on the Fourteenth before the Supreme Court busied itself with effacing its Privileges or Immunities Clause, which empowered the federal government to protect individual citizens from abuses by state governments. (Contemporary examples of such abuses include welfare “reform,” union-busting, and all-out assaults on public education.) In the Slaughterhouse Cases, five justices narrowly construed the Privileges or Immunities Clause to prevent its extension into state politics — a warning that the federal judiciary could serve as a redoubt for conservative resistance to the project of building a national, centralized, and egalitarian state.
First of all, while the 14th Amendment analysis (although not the judgement) of the Slaughterhouse Cases was certainly wrong, whether the p&i clause can be plausibly read as preventing various bad economic policies passed by state legislatures is, at best, highly contestable. It’s also, in this context, incoherent — I thought we didn’t want the Supreme Court “protecting constitutional boundaries against the incursions of democratic politics”? (The Civil Rights Cases would have been a much better example here.)
It is an important truth that the Supreme Court has sometimes been a resort for forces opposed to a strong national state. But, again, it’s important to remember the Supreme Court generally reflects the views of the dominant coalition. The Supreme Court’s retreat from civil rights protections during Reconstruction mirrored that of the Republican Party in general. Consider Section 2 of the 14th Amendment. It requires Congress to reduce the representation of states that disenfranchise adult males for reasons other than criminal activity; it’s not stated as an option but as a responsibility. What happened is that states engaged in plenty of disenfranchisement and Congress did nothing. This is more representative; the Supreme Court was a very minor factor in the reemergence of Jim Crow.
There is good reason to be skeptical of judicial review, but too many such critiques vastly overrate its effects. I’ll return to what this means in the follow-up post.
In a tradition Albany Democrats have long been in the process of perfecting, Virginia State Senator Phillip Puckett thinks that substantial number of Virginians should be denied care through the Medicaid expansion because he wants less electorally-accountable taxpayer-funded sinecures for himself and his daughter. I don’t know whether this is legal bribery, but it’s certainly ethically and morally odious.
…let me put it this way: it’s pretty amazing when in a dispute among venal Democrats Terry McAullife is the unambiguous good guy.
This afternoon U.S. District Court Judge Barbara Crab overturned Wisconsin’s ban on marriages by gay and lesbian couples. The ban, which was approved by voters in 2006, is now opposed by the majority of Wisconsin voters. A recent Marquette University Law School poll found 55 percent of registered voters statewide now favor allowing gay and lesbian couples to marry, while 37 percent oppose it and 6 percent say they do not know.
The Rays now have, remarkably, the worst record in baseball. I would normally feel bad for the Little Franchise That Could, only they’re still employing a rapist. (At least you can’t say that the Rays are putting their baseball team ahead of higher principles, since in addition to his massive shortcomings as a human being Lueke can’t actually pitch.) In summary, go Blue Jays!
If you didn’t see it at the time,for further background Jeb Lund’s Lueke piece remains a classic.
A commenter reminded me of something I had meant to blog about — the new book by the former editor of the Times science section. Eric Johnson:
Nicholas Wade is not a racist. In his new book, A Troublesome Inheritance, the former science writer for the New York Times states this explicitly. “It is not automatically racist to consider racial categories as a possible explanatory factor.” He then explains why white people are better because of their genes. In fairness, Wade does not say Caucasians are better per se, merely better adapted (because of their genes) to the modern economic institutions that Western society has created, and which now dominate the world’s economy and culture. In contrast, Africans are better adapted to hot-headed tribalism while East Asians are better adapted to authoritarian political structures. “Looking at the three principal races, one can see that each has followed a different evolutionary path as it adapted to its local circumstances.” It’s not prejudice; it’s science.
But surely he just has the rare courage to FOLLOW THE SCIENCE WHERE IT LEADS!
What makes Wade’s book so troublesome is that he offers no scientific evidence to support his racial hypothesis. None. In fact, Wade acknowledges himself that his ideas on this topic are “leaving the world of hard science and entering into a much more speculative arena at the interface of history, economics and human evolution.” Nevertheless, because he thinks academics have suppressed the importance of genetics and race in human history for political reasons, Wade charges ahead and concludes, confidently, that Western civilization is a Darwinian success story.
A Troublesome Inheritance has been roundly criticized by scientists and journalists alike. Biologists such as H. Allen Orr and Jerry Coyne have pointed out its many scientific problems. Statistician and political scientist Andrew Gelman has identified the “naivete” in Wade’s eagerness to assume a genetic cause for any change in social behavior. Following their debate, the anthropologist Agustin Fuentes observed, “Wade ignores the majority of data and conclusions from anthropology, population genetics, human biology and evolutionary biology.” Even Wade’s former newspaper, the New York Times, carried a review panning the book. Unfortunately, readers lacking a background in science or journalism may not so easily spot Wade’s many errors. This could lead to even more troublesome issues given the excitement the book has generated among those predisposed to accept its conclusions.
“Wade says in this book many of the things I’ve been saying for the last 40 years of my life,” said David Duke, the white nationalist politician and former Grand Wizard of the Knights of the Ku Klux Klan, on his radio program on May 12, 2014. “The ideas for which I’ve been relentlessly villified are now becoming part of the mainstream because of the irrepressible movement of science and genetics.” Duke devoted his “blockbuster” show to a discussion of A Troublesome Inheritance and celebrated how Wade bravely took on the “Jewish Supremacists” and their “blatant hypocrisy over race and DNA.” There have also been multiple lively discussions about the book at Stormfront.org, the online forum Duke created and one of the most visited white supremacist websites on the net with about 40,000 unique users each day.
I particularly enjoyed this, from the Gelman review:
Wade’s attitudes toward economics also seem a bit simplistic, for example when he writes, “Capital and information flow fairly freely, so what is it that prevents poor countries from taking out a loan, copying every Scandinavian institution, and becoming as rich and peaceful as Denmark?” The implication is that the answer is racial differences. But one might just as well ask why can’t Buffalo, New York, take out a loan and become as rich (per capita) as New York City. Or, for that matter, why can’t Portugal become as rich as Denmark? After all, Portuguese are Caucasians too! One could of course invoke a racial explanation for Portugal’s relative poverty, but Wade in his book generally refers to Europe or “the West” as a single unit. My point here is not that Haitians, Portuguese, and Danes are equivalent—obviously they differ in wealth, infrastructure, human capital, and so forth—but that it is not at all clear that genetic differences have much of anything to do with their different economic positions.
The bolded rhetorical question is…amazing. Trying to explain everything in the world through (white supremacist) pop science might be even worse than trying to explain everything in the world through Econ 101.
Snowden’s choice was the bitter harvest of seeds sown by the Times almost a decade ago. In the fall of 2004, just ahead of the November general elections, the Times’ news leadership spiked an exclusive from Washington correspondents James Risen and Eric Lichtblau, disclosing massive warrantless domestic eavesdropping by the NSA.
White House officials had warned that the results of such a story could be catastrophic. [For who? -- ed.]
The Times, in a decision led by then-Washington Bureau Chief Philip Taubman and then-Executive Editor Bill Keller, quashed the story, despite the objections of the two reporters, their editor Rebecca Corbett, and several of their colleagues.
If democracy means anything, it’s that a free press should ensure that voters lack access to pertinent information before an election as long as the government assures the public it’s for its own good.
The fact that the paper (albeit not under Keller) that rushed Judy Miller’s Iraq War “reporting” into print spiked a scoop about the NSA at the behest of the administration is certainly consistent in its own way.
It’s a tradition of which most New York academics and an increasing number of graduates of New York colleges will be aware: Charles Schumer coming to various commencement ceremonies to tell the same story. (SPOILER: he doesn’t get the girl…or the scholarship!)
I actually find it sort of endearing, to be honest. It’s short and non-pompous, at least, and certainly can’t be explained by political ambition. (He’s not up until 2016 and in any case will for all intents and purposes be running unopposed should he seek another term.) He’s not using the speeches to shake down the universities for a fee. Both he and the students seem to get a kick out of it, so why not.
Jon Chait recently observed that the recent practice is for Republican politicians to conclude their climate change trooferism gibberish with the punchline “I’m not a scientist.” This works for the medical profession too. Let’s say you’re a Republican politician, and are not surprisingly a hateful misogynist so you want to prevent some forms of birth control from being covered by insurance plans, especially the effective ones. Of course, such a policy is unpopular, so it’s convenient to use abortion as a pretext. Only IUDs generally don’t work as abortifacients even if you subscribe to the utterly nutty idea that causing a fertilized egg not to implant is causing an abortion; they prevent fertilization. Now you have a way out!
The anti-choice movement has been claiming for awhile that hormonal contraception works this way, despite having no real evidence for that contention, so there were immediate concerns that HB 351 would be a back door way to ban insurance coverage of the pill. The bill’s sponsor, Rep. John Becker (R), hastily tried to put those fears to rest by assuring hearing attendees that he wasn’t out to ban birth control pill coverage and would be happy to amend the bill to clarify that point. No, there’s another contraception he’s eyeballing for the chopping block, one that just happens to be both the single most effective contraceptive method available: the IUD.
Becker claims IUDs should be considered abortion because they prevent the implantation of a fertilized egg. No big surprise, but he’s wrong, and not just because preventing implantation is not considered “abortion” by medical science. It’s also because IUDs work by preventing sperm from reaching the egg. Mirena also stifles ovulation. They may have a secondary effect of preventing implantation, but, as with the pill, the evidence shows that non-contraception users “kill” a lot more fertilized eggs by callously menstruating them out.
Becker addressed his lack of knowledge about science thusly: “This is just a personal view. I’m not a medical doctor.”
Expect to hear a lot more of this.
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