The Fractured Jewel of Constitutional Democracy

 

By David K. Shipler 

            While President Trump has gilded the Oval Office in gold, he has sullied the crown jewel of the Constitution. He has done so with the collaboration of his Republican allies in Congress and the Supreme Court. The latest example is his White House ballroom, a superficial symbol of his deeper dictatorial passion.

There are many things wrong with Trump’s self-indulgent ballroom project: Its gargantuan bad taste (in Soviet-style scale). Its elitist, flamboyant luxury when millions of Americans barely make ends meet (“Let them eat cake,” scoffed Marie Antoinette). Its gateway for corrupt private contributors seeking presidential favors (“an offer he can’t refuse,” said the Godfather). Its deceptive use of public funds for the private pampering of the leader (Putin, Orban, Marcos, etc.)

            But most significantly, the ballroom is his latest hammer blow to the precious gem of the American constitutional system: the separation of powers, the checks and balances so ingeniously designed by the Framers who feared, presciently, the concentration of authority as they formed a central government. They created legislative, executive, and judicial branches (in that order in the Constitution) to watch and restrain one another.

Trump has bulldozed through those bulwarks. He did not deign to seek the legislature’s required approval before demolishing the East Wing of the White House, as if he were the owner, when it actually “belongs to the American people,” as Jacqueline Kennedy noted. He solicited “donations” to build an enormous ballroom but did not bother seeking congressional appropriations for the balance of the estimated $600 million cost, which will evidently be paid from the pockets of unwilling taxpayers. Neither of the other two branches of government is stopping him, not the Republican-controlled Congress nor the Republican-controlled Supreme Court, whose chief justice ruled last week that construction could continue for the time being.

            One wonders if the Framers had imagined how supine the legislative and judicial branches would become, how readily they would abdicate their roles.

“All men having power ought to be distrusted to a certain degree,” James Madison told his fellow delegates to the Constitutional Convention in that hot Philadelphia summer of 1787.  Defending the draft of the Constitution the following year, Madison wrote in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

            And so we arrive at the edge of tyranny as the legislative and judicial branches combine their acquiescence to award Trump’s executive branch the power to remake government.

As if the Constitution had never been written, the president and his collaborators, including Elon Musk and his so-called Department of Government Efficiency (DOGE), unilaterally slashed the legislature’s appropriations for foreign aid, domestic spending, and scientific research. By cutting off funds and firing employees, Trump and Musk effectively eliminated agencies Congress had created, including the US Agency for International Development; the US Institute for Peace (dwarfed and renamed for Trump); the Consumer Financial Protection Bureau; and the US Agency for Global Media, which ran the international broadcasters, Voice of America and Radio Free Europe/Radio Liberty. The legislative branch, under the thumb of Trump’s dominion over his fellow Republicans, slept through its constitutional duty.

No peep was heard from the Republican-led Senate to defend the body’s authority to confirm presidential appointees under the Appointment Clause of Article II, Section 2, which requires the Senate’s “advice and consent,” even for a temporary figure like Musk, given the extent of his power, as a lawsuit argued. A federal district court judge agreed, noting that without going through the Senate, “the Appointments Clause would be reduced to nothing more than a technical formality.” But the judge’s preliminary injunction was swept away by the Fourth Circuit Court of Appeals.

Such has been a pattern in the judicial branch, where many district judges have temporarily blocked Trump’s actions, only to have their injunctions overturned in the appeals courts and the Supreme Court, which has acted hastily in its “emergency docket” where rulings are not justified by citing law, precedent, or the Constitution.

Emboldened by the higher courts’ acquiescence, Trump and his officials frequently ignore lower judges’ orders, especially in immigration cases. At least 31 flagrant violations of court orders (about 1 in 8 cases) involving widespread layoffs, funding cuts, and the detention of immigrants were tabulated in an Associated Press survey.

The administration’s defiance had immediate consequences. Even after a judge ordered the Education Department to retain mental health funding, for example, the Trump administration continued to block the money, forcing the dismissal of mental health professionals from the school system in Eureka, California.

Similarly, Trump officials refused to comply with a judge’s order to restore the longstanding practice of allowing immigration detainees to post bond and be freed pending the resolution of their cases. Judge Sunshine Sykes, a Biden nominee, accused the administration of trying “to erode any semblance of separation of powers,” as if “in a world where the Constitution does not exist.”

The Supreme Court has blocked one method Trump has used to exact tariffs, but he’s using alternative means. It has blocked his executive order barring birthright citizenship for anyone born in the US. But it has put few other obstacles in the way of Trump’s march toward autocracy.

The six Republican-nominated justices, three of whom were selected by Trump, have enhanced the powers of the executive to the detriment of both the legislative branch, and even of their own. For while district court judges who have ruled against Trump have conducted full fact-finding procedures, considered briefs and held oral arguments, many of those carefully reasoned findings have been dismissively brushed aside by the six “conservative” justices, often with one-sentence orders vacating injunctions and allowing the unprecedented onslaught by the White House to proceed.

Some of those right-wing justices have long supported a stronger executive. They have long questioned the ability of Congress to create regulatory agencies whose commissioners could not be fired by the president without cause. Now they have ruled that such replacements for no reason at all are permitted—except at the Federal Reserve, whose politicization would delegitimize US economic policy, bringing disruption for the wealthy, i.e., themselves. This guarantees dramatic swings in regulatory schemes from administration to administration, as in undemocratic countries that see repeated transfers from dictator to dictator.

The label “conservative” is a misnomer. What is it that the Republican justices and the Republican legislators seek to conserve? Not the separation of powers, obviously. Not the crown jewel of the Constitution. Had they lived during the American Revolution, which side would they have been on?

The Risks and Benefits of Government

 

By David K. Shipler 

            In his acerbic 1776 pamphlet Common Sense, Thomas Paine skewered the British monarchy with a broad assault: “Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices.” Government was a necessary evil, he thought, “a mode rendered necessary by the inability of moral virtue to govern the world.”

            Moral virtue vs. imperious oppression: that was Paine’s picture. Yet those opposite poles of the human personality represent not just a conflict between society and government but within government itself, especially in the modern era.

On the one hand, as President Trump is demonstrating, government can be a cruel enforcer of political and social conformity, with punishment for dissident speech and policy differences reaching into the distant reaches of civil society.  But government can also act as a facilitator of the common good, mobilizing resources to channel society’s generosity and vision, with protection for the economically vulnerable and stewardship of research in vast fields of science, engineering, education, and beyond.

It is precisely that second, beneficial dimension of government that is being dismantled by Trump, his aides, his Republican members of Congress, and his like-minded Supreme Court justices. What remains, enhanced, is the most threatening facet of government, its absolutist power to frighten, arrest, deport, and close down space for the intricate play of ideas and debate.

In crisis, ironically, the modern society turns to government, either to blame for failure or to beseach for help, as in the aftermath of the Texas floods that swept away girls in a riverside summer camp. Rescues and searches were done by many volunteers, yes, but calls for future preventive measures were directed at government, not at private enterprise. It is government that has the power to pool and direct funds, and thereby amplify the caring of the community. Good government harmonizes with people’s needs.

Trump’s government, however, is hostile to people’s needs, both immediate and long-term. He cuts funds for rescue and repair emergencies such as the Texas flood. He cuts Medicaid funding for the poor, which will also jeoparize health care for the rural non-poor, whose hospitals will struggle to survive without the government aid. He cuts food subsidies for low-income children whose malnutrition will cause lifelong cognitive impairment.

He ends funding and thereby hobbles America’s advantage over China in alternative energy and other fields. He yields his country’s lead in medical advances to others and frightens talented foreign researchers away. He forfeits his country’s affluent compassion in addressing famine, conflict, health crises, and other suffering abroad, thereby diminishing American global influence. He disrupts the future prosperity of the United States, its credit rating, and the strength of its currency by toying impulsively with tarriffs, robbing the intricate worldwide trade mechanisms of predictability, that essential prerequisite for economic investment.

What he leaves intact are the worst elements of government: its totalitarian impulses, its arbitrariness, and its bullying penchant for political oppression: Watch, the ground is being laid for Democratic candidates to be arrested on trumped-up charges, as in Turkey and other semi-authoritarian systems.

Remarkably, little is being done to preserve the genius of the Framers’ constitutional system—its separation of powers—which is being abandoned by the legislative and judicial branches (at the Supreme Court level), leaving Trump’s executive with exorbitant authority to ride roughshod over the checks and balances that have kept American democracy functioning for more than two centuries. That makes the Trumpists and his acolytes in Congress and the Supreme Court anything but “conservative.” They are not conserving. They are regressionists, not revolutionaries in Thomas Paine’s meaning. In 1776, they would have been British loyalists, monarchists. They are staging a counter-revolution, and the country is letting them get away with it.

Perhaps understandably, most Americans have been slow to recognize what is happening.  Comparing the early days of Trump with the early days of Vladimir Putin, a Russian told an American friend several few months ago, “You guys are caving faster than we did.” That was probably because the Russians knew what was coming; they’d been there. Americans do not. They do not yet know how terrifying government can be. Immigrants are learning. Citizens are next.

What Trump and his followers are creating fits Thomas Paine’s characteristic of “intolerable” government, in which “our calamity is heightened by reflecting that we furnish the means by which we suffer.” Under Trump and his successive followers, the United States is likely to become less free, less prosperous, less healthy, less safe, less educated, less just, less stable, less influential, less admired, less connected with the world, and less happy and comfortable for Americans’ children and grandchildren.  

To invert Paine’s dictum, Trump’s government has become an instrument of our vices, not a restraint. It represents society’s worst impulses, which coexist with its generous decency. The question going forward is whether American society, by “uniting our affections,” can someday remake government into a collective effort of virtue that reflects whatever caring resides in the civic culture of the country.

Trump: Promises Made, Promises Broken

 

By David K. Shipler 

                One of President Trump’s campaign slogans most popular with his supporters was the mantra, “Promises Made, Promises Kept.” But the most important promises that presidents are obligated to keep are those made by their country. And in merely three weeks, Trump has broken multiple solemn promises made by the United States, many longstanding and life-saving.

                His message is clear: Don’t trust America.

If you work for our soldiers in war and are promised safe passage to the US, don’t believe it. If you’re promised continuing treatment with HIV medication, don’t believe it. If the world’s leading democracy promises to keep supporting your pro-democracy efforts in your not-so-democratic country, don’t believe it. If you’ve obtained a hard-won promise to fund effective work combating sex-trafficking, civil conflict, ethnic strife, or radicalization that leads to terrorism, don’t believe it. If you have a subcontract or a lease or an employment commitment from a non-profit organization funded by the US, don’t trust it. Don’t think that promised funds for hospitals, ports, roads, or other development projects already underway will actually be paid—unless the money is coming from China.   

                Don’t trust any international agreement with the United States, not on nuclear weapons, climate change, or trade. Don’t believe in any alliance with Washington. Don’t think that common security interests or economic interdependency protects you from a blizzard of broken promises.

If you’re in the US, don’t believe the promise of a written contract based on federal funding; it can be scuttled at midnight. If you’re a federal employee, don’t believe in the promises of the law, civil service protection, due process, or even plain ethics; you can be kicked out of your office in an instant. Don’t believe that your long expertise will protect you; in fact, it is likely to hurt you, since the Trump movement resents, vilifies, and distrusts “experts.”

Do not, under any circumstances, text or email anything sensitive, particularly with such terms as “gender” or “diversity.” Use the phone if you have to communicate. Don’t trust your coworker, who might be an informant.

Trump's Coup d'Etat

 

By David K. Shipler 

                Anyone who has seen the overthrow of a country’s government, either peacefully or by force, must be watching the United States with an uneasy sense of familiarity. In less than two weeks since his inauguration, President Trump and his zealous staff have committed offenses typically associated with a sudden takeover of an unstable autocracy.

Is this what most voters who elected Trump wished for? While stopping short of arresting political opponents (so far), the new regime has threatened criminal investigations of disfavored officials, begun ideological purges in government agencies, ordered federal workers to inform on colleagues, yanked security details from former officials who criticized Trump, risked the health of millions by halting worldwide humanitarian programs, erased essential medical information from government websites, pressed colleges to report on foreign students’ supposed antisemitism, undone rules against racial and gender discrimination, dictated that schools nationwide indoctrinate children with a “patriotic” curriculum, and more.

 The widespread destruction of norms and institutions, aimed at creating immense vacuums to be filled with a new belief system, has never before been seen in the United States. It reflects an aspiration that might be called totalism—not totalitarianism, which connotes complete subservience of the population to the will of the state. But rather, an effort to infuse both government and civil society, as totally as feasible, with a comprehensive ideology. Part of that is borne of a distaste for government itself, except when used to expand raw presidential power.

This cannot be accomplished within the confines of the Constitution’s separation of powers and the republic’s decentralization of authority to the states. Therefore, Trump has been ignoring the legislative branch—the laws passed by Congress—and in one case so far (not shutting down TikTok), ignoring both the legislative and judicial branches. He also seems poised to bully recalcitrant states by withholding federal aid.

America's Gathering Storm

 

By David K. Shipler 

              It’s too bad that Supreme Court justices and other government leaders aren’t required to live for two or three years in some dictatorship before they take office in the United States. Better yet, in one of the countries that have used democracy to undermine democracy. Then perhaps they would recognize the signs of a gathering storm, when the friction of the air seems to change and the wind turns ominous.

              The Supreme Court and the Republican Party are laying the ground for autocracy. They are corrupting the constitutional interplay among the three branches of government, among the shared and competing interests in a complex society, and therefore among the rulers and the ruled.

              The Republicans have abdicated the key role that political parties must play in every free society—filtering out extremist demagogues. And the radical right on the Supreme Court has now granted broad immunity to presidents who commit crimes with “official acts.” This junction of political and judicial mischief could not come at a more perilous time, with a Republican authoritarian poised to return to the presidency carrying a coherent ideological blueprint he did not have in hand his first time around. He would commit felonies against democracy virtually unfettered. This is the perfect storm.

How to Evade The Supreme Court

                                                     By David K. Shipler 

              With radical regressives on the Supreme Court trying to drag the country back to the 1700s, the case is being made for ignoring, defying, or deftly evading rulings that clash with the values of modern society. These include abortion, guns, government regulation, voting rights, religion, and affirmative action.

Both legal and illegal approaches are on the horizon. Already, to parry the extremist justices, New York has taken advantage of loopholes in Justice Clarence Thomas’s sloppily written gun-rights opinion. The Democratic governor and legislative majority enacted into law restrictions on concealed-carry licenses that the Court’s majority surely hadn’t imagined, and a list of “sensitive places” where guns would still be prohibited—a much longer list than the Court presumably envisioned.

Similar efforts are underway in progressively-dominated state legislatures to enshrine abortion rights in statutes or amendments to state constitutions following the Supreme Court’s ruling (Dobbs v. Jackson Women’s Health Organization) that overturned Roe v. Wade and magically erased the right to abortion that the Court had earlier found existed implicitly in the United States Constitution.

The game now is going to be to outwit the justices, legally or otherwise. Some methods likely to be tried are in plain view, some under the radar.

 In the blatant category, nearly ninety elected district attorneys across the country announced in a joint statement that they would not prosecute violations of anti-abortion laws in their states. More unspoken refusals can be expected from prosecutors whose offices are already overworked with street crime and don’t want the cruel optics of jailing women and their doctors.

Civil disobedience by clinics willing to risk penalties to oppose the Court might be attempted if brave souls exist. And in some other areas of the law, surreptitious defiance or passive resistance is probable.

For example, after the Supreme Court strikes down race-based affirmative action, as it is certain to do next term in a case involving Harvard University, admissions officers will have little trouble continuing to give preference to minorities in the cloistered discussions that occur when picking the next freshman classes.

Those choices are pretty subjective right now. Grades and test scores have never been the whole story, especially at elite schools, which also look for the unquantifiable attributes of social commitment, community leadership, perceptive self-awareness, and personal success in rising above hardship, among other characteristics. A former Ivy League admissions director once told me that his department valued students who had worked for change, albeit just in their limited circles of school and neighborhood. Absent such qualities, even some class valedictorians with sparkling SAT scores were being rejected.

Since colleges are moving away from requiring or considering SATs, they’ll be able to disguise their racial preferences more easily, if they wish, to create the diverse classes many schools now see as benefitting not only students of color but also whites, who are exposed to the variegated features of the real world they will enter after graduation. University lawyers won’t approve, noted a friend in the legal profession, since they don’t want their clients to get sued. But that risk might not deter the entire generation of admissions officers who have worked hard to recruit bright kids from poor and minority backgrounds. (The Court could leave economic affirmative action intact, allowing colleges to give preference to low-income applicants without considering race.)

The Dying Constitution

 

By David K. Shipler 

              Conservatives like to deride liberals who believe in a “living Constitution,” which has stayed alive by applying its core principles to the evolving conditions of society. But the opposing view, that the Constitution must be interpreted only as the Framers supposedly intended, will not conserve anything. It will, if taken to the logical end now pursued by Republican extremists in legislatures and courts, strangle the founding document by cutting it off from the present, from the oxygen it needs to nourish the rights it is meant to preserve.

              The radicals on the right have formed a continuum of anti-constitutional movements that run from street thugs to election workers to politicians and to Supreme Court justices. Paradoxically, they cite the Constitution as their guide: the January 6 insurrectionists shouting their affection for a Constitution they’d obviously never read (in particular the Twelfth Amendment on Congress’s vote-counting process). Republican state legislatures organizing myriad ways to undermine the next elections. And the Supreme Court justices who are orchestrating an insurrection of their own by twisting the Constitution to fit their personal ideologies.

The “conservatives” in robes say they are keeping the Constitution as written, but they are actually making it all too malleable. They are turning it into a blank check for whatever policy they wish to inflict on American citizens, whether erasing women’s abortion rights, establishing in the public square a state-sanctioned Christianity (not Islam, for sure), or expanding practically everyone’s right to carry deadly weapons. All this has provoked accusations from the left that the Supreme Court is forfeiting its legitimacy, but the larger danger may be to the legitimacy of the Constitution itself.

Guns Are a Symptom

 

By David K. Shipler 

                The United States of America is now without any sacred places. Churches, mosques, temples, and synagogues are not sacred. Worshippers have been shot to death in Iowa, Texas, California, Pennsylvania, South Carolina, Tennessee, Kansas, Colorado, New York, Ohio, Georgia, Wisconsin, and elsewhere. Schools are not sacred. Children have been shot at 27 schools so far in 2022. Hospitals are not sacred. This year and last, in North Carolina, Oklahoma, Ohio, Pennsylvania, New York, Illinois, and Minnesota, patients and staff at hospitals and clinics have been targeted. There is no sanctuary.

                The vulnerable spaces are not only physical. They are also conceptual. They are areas of ideas and practice where democracy’s shared beliefs used to be protected by moral barriers—bulwarks that are now eroding. High levels of authority and influence openly corrupt the reverence for honest elections, the deference to the rule of law, the integrity of facts and truth. The society reels under a shroud of menace. There is a sense of disorder, instability.

                No wonder Americans rush to buy guns whenever a mass shooting makes the country recoil. People have grown afraid of one another. A great retreat from common ground is underway, a pulling back into individual sovereignty, where the gun is a tool and a talisman. Far from the fields and forests of the responsible hunter or the shooting range of the careful sportsman, the gunman who harbors fear or hatred buys a firearm to kill human beings, as many as fast as possible. Whether to defend his home and family, or to take revenge, or to serve a demented cause, he wields his weapon in a wilderness of distrust.  

                And so the gun is a symptom of a breakdown in America. The symptom could be treated, obviously; guns could be restricted in availability and capability. That is a task readily accomplished if citizens elected people who valued human life over political life. But even if that miracle occurred, the underlying society would not be healed sufficiently to obviate the gun as an object of desire.

The Supreme Court vs. Health and Safety

                                                     By David K. Shipler               

                When the Supreme Court blocked the Biden administration’s vaccine-or-test mandate for large employers, its three most conservative justices also issued a little-noticed concurring opinion with ominous implications. In it, they gave voice to an expansive interpretation of the “non-delegation doctrine,” which holds that Congress cannot delegate its legislative powers to the executive branch. When agencies issue broad regulations, the argument goes, they are effectively legislating, thereby violating the Constitution’s separation of powers.

                How far the Court will take this reasoning is an open question. But its most outspoken champion, Justice Neil Gorsuch, who wrote the concurring opinion, was joined by Justices Clarence Thomas and Samuel Alito in an alarming pronouncement: that even if the law allowed the Occupational Safety and Health Administration (OSHA), to issue the mandate—which existing law did not, the 6-3 majority ruled—such a statute should be overturned.

                “On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate,” Gorsuch, Thomas, and Alito declared. “On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”

With two more votes on the Court, that position could hobble the federal government’s ability to apply health, safety, and environmental laws across the board. Indeed, a case involving the Environmental Protection Agency, to be argued next month, might provide an opportunity for a ruling of considerable scope.

The Criminal Justice of Amy Coney Barrett, Part Two

 

By David K. Shipler 

                The newest Supreme Court Justice, Amy Coney Barrett, writes much better than most of her new colleagues, and she knows how to tell a story. In the area of criminal justice, including defendants’ and prisoners’ rights, she begins each opinion with a narrative vivid enough for a crime writer to treat as a synopsis for a novel. And her rulings, founded on clear legal argument, are hard to categorize along a liberal-conservative spectrum. She stands willing to decide against police, prosecutors, and trial judges when she sees the facts and the law demanding as much.

                That was her record during three years on the 7^th Circuit Court of Appeals. But she was restricted by the precedents of earlier rulings by her circuit and the Supreme Court. In many cases, she wrote for unanimous three-judge panels that included two liberals who surely had significant influence over the shape of the opinion. The highest court’s culture with a conservative majority will be different. Its authority to reinterpret the law and the Constitution exceeds that of appeals courts. With such license, she could shift to the right in cases involving the Fourth Amendment, for example, where she has been fairly tough on law enforcement. On the other hand, as a supporter of the Second Amendment right to own firearms, she gives close scrutiny to police searches that turn up guns and to sentence enhancements for gun possession.

                Following are several of her most interesting opinions that were described more briefly in Part One:

                United States v. Watson—“The police received an anonymous 911 call from a 14-year-old who borrowed a stranger’s phone and reported seeing ‘boys’ ‘playing with guns’ by a ‘gray and greenish Charger’ in a nearby parking lot.” The caller said the “boys” were black. “A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon.”  Watson then moved to suppress the gun evidence as the fruit of an unconstitutional search.

                 Under the Supreme Court’s application of the Fourth Amendment dating from Terry v. Ohio in 1968, Barrett noted, “an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that ‘criminal activity may be afoot.’” She also cited later cases spelling out factors justifying reasonable suspicion, including a particularized and objective basis for suspecting a certain individual of a specific crime. Reasonable suspicion is a lower bar than the “probable cause” required to get a search warrant from a judge. A warrantless search also requires urgency, in that a pedestrian or a driver could depart with evidence before a warrant could be issued.

In Watson’s case, the police claimed that blocking the car and doing the search were justified under those rules. Barrett quoted the first officer as describing the neighborhood as a heavy crime area and worrying that if there were “three or four guys displaying weapons, they might [be] about to shoot somebody.” A second officer said, “any time you have males with weapons, there’s always a sense of urgency ‘cause anything could happen.”

But Barrett found precedents derogating the reliability of anonymous tips in establishing reasonable suspicion. Furthermore, she declined to apply a Supreme Court precedent granting a 911 call considerable credibility because here, she observed, it came from a borrowed phone by a boy whose identity was unknown and could probably not be traced. Furthermore—the clincher—“his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.” Her panel suppressed the evidence and vacated the judgment.

The Criminal Justice of Amy Coney Barrett, Part One

 

By David K. Shipler 

             For all the close scrutiny of soon-to-be Supreme Court Justice Amy Coney Barrett’s writings on the hot-button issues of abortion rights, gun rights, and Obamacare, little attention has been paid to her rulings on the rights of criminal defendants and prisoners. She has issued opinions in thirty-four such cases and signed on to other rulings in her three years on the 7^th Circuit Court of Appeals, a rather thin record, yet one demonstrating a willingness to rule both for and against police, prosecutors, and trial judges.

At times she conveys compassion for the convicted and a robust regard for the Fourth Amendment’s restrictions on the police power to search. She is occasionally willing to strip officers of their “qualified immunity” from lawsuits. But she can also adopt extremely narrow interpretations of legal language to uphold questionable convictions and heavy sentences.

           In the general area of criminal justice and related civil suits, she has issued only five dissents—four going against inmates and defendants and one arguing that a non-violent felon should be allowed to own firearms, which current federal law prohibits. In another dissent, in Sims v. Hyatte, she opposed the exoneration of a man whose attempted murder conviction relied entirely on his identification by the victim, who turned out to have been hypnotized before his trial testimony—a fact not disclosed to the defense. Two of the three judges overturned the conviction, and the man was released after twenty-six years in jail.

Otherwise, she has written for unanimous three-judge panels, putting her in the mainstream of her court. It is fair to say that most of her opinions in criminal cases have been slam dunks, not even close calls given the facts and the precedents. Some appeals that reached her court seemed like stretches by defense attorneys; others exposed such egregious behavior by authorities that a contrary ruling would have shocked the conscience. (More detailed descriptions of key cases will appear next week in the second part.)

Supreme Court or Supreme Legislature?

 

By David K. Shipler 

                The death of Justice Ruth Bader Ginsburg and the immediate swirl of politics surrounding a choice of her successor ought to remind Americans of what they are losing in their stressed democracy. The Supreme Court, designed to transcend bitter political divides, now reflects them instead. This is obviously the doing of the justices themselves. But it is also the sin of presidents and senators who nominate and confirm them.

 The judiciary has been the only one of the three branches of government of late to function with reasonable responsibility. The executive branch under President Trump has defied the law, induced chaos, promoted ethnic hatred, and ignored expertise from its own scientists and generals and diplomats. The legislative branch has deadlocked in divisive bickering over police reform, voting rights, prescription drug costs, renewed economic aid during the pandemic, and a host of other urgent matters. Federal judges, meanwhile, have steadied the ship on numerous occasions—though not all—by restraining some radical efforts to curtail immigration, abortion rights, and voters’ access to the ballot box.

But the judicial branch has never been entirely apolitical, if politics means the advocacy of certain policies over others, whether in the law or in social values. Judges ascend to the bench carrying their particular legal and social philosophies. The question is how much they can put aside in the interest of upholding precedent, interpreting the law, and applying the principles of the Constitution. The question is how much they can evolve over years in those exalted positions. And the question is not whether, but to what extent, the courts stand resilient against the vicissitudes of politics and the commands of ideologies.

It is no accident that countries careening toward authoritarianism—Hungary and Poland come to mind—are compromising the independence of their judiciaries, and that longstanding dictatorships—China and Russia, for example—never had true judicial independence in the first place.

As many politicians from Trump on down seek judges whose opinions echo their own, they risk scoring short-term victories at the cost of eroding what the Framers erected as a precious pillar of pluralistic democracy. The latest example is the unseemly struggle over Ginsburg’s replacement.

The Politics of Hate

By David K. Shipler

Making America Cruel Again, Part 4 of an Occasional Series

                Donald Trump might not drink alcohol, but he is fueled by another addiction, probably more dangerous: the roar of the crowd. After every brief period of detox in Washington, surrounded by sober aides and Congressional Republicans who try to contain his craving, he needs his fix. So he breaks loose and explodes into a rally of avid worshippers in a carefully picked niche of the country where his cult of personality thrives on loathing the rest of America. They adore him feverishly, wrote the columnist Richard Cohen, because “he hates the right people.”

                Legitimizing political hatred predated Trump, fostered by such propagandists as Rush Limbaugh, who for years has been vilifying liberals, Democrats, blacks, immigrants, the “drive-by” media, and “feminazis” who advocate for women’s rights. Limbaugh’s name-calling has caught on with enough conservatives to make its way into the White House and now prospectively to the Supreme Court if Brett Kavanaugh is confirmed. Accused of sexual assault as a teenager, Kavanaugh showed more judicial temper than temperament by attacking Democrats on the Senate Judiciary Committee and raging against an imagined conspiracy of “the left” on behalf of the Clintons. Trump loved it.  

    Whatever it is that Trumpist conservatives want to conserve, it’s obviously not the civil discourse that has lubricated the machinery of American democracy.

He Said, They Said

By David K. Shipler

                We Americans are swimming in lies—lies from an entire advertising industry, lies from the top of our government on down, lies from the grassroots of hateful partisans, lies from such august institutions as the Catholic Church, lies from Fox News and other purveyors of propaganda. And on, and on, and on.

This Thursday, the Senate Judiciary Committee will treat us to another gargantuan lie: the deception that we are seeing a truth-seeking process because Professor Christine Blasey Ford will be heard accusing Judge Brett Kavanaugh of attempting to rape her when she was 15. In reality, however, virtually all the members of the committee, both Republicans and Democrats, have already decided the case. The minority Democrats will credit her account, and the majority Republicans will not. She is on trial, as are most women who finally gather the courage and self-esteem to speak out about their abuse at the hands of prominent men.

And this will be something of a show trial, with a Republican-hired lawyer—a woman, of course, for the sake of “optics”—appointed to question her, to poke holes in her story, perhaps to rattle her enough to make her come across on national television as incoherent, confused, and unreliable. There is no hint in the Republican-led committee of any interest in getting to the bottom of the allegation. If there were, the FBI or a committee-organized, impartial investigatory staff armed with subpoenas would have been assigned to the matter. And the one alleged witness, Mark Judge, would be forced to testify under oath.

The Republicans’ refusal to call Judge pulls back the curtain on the farcical charade. They are obviously afraid that Judge, who Ford says was present when Kavanaugh pinned her to a bed, ground his body against her, covered her mouth when she screamed, and tried to remove her clothes, might suddenly remember the incident in sworn testimony. There’s nothing like the threat of a perjury charge to focus your mind.

But this is political theater, practically devoid of due process. A methodical and intellectually honest effort to muster the facts and arrive at a conclusion is not legally required in the Senate as it is in criminal court. And so it will not be pursued, because it might interfere with Republicans’ steamrolling campaign to politicize the Supreme Court in their image.

Trump vs. Workers

By David K. Shipler

Making America Cruel Again, Part 2 of an Occasional Series

            One of the many peculiarities of Donald Trump’s presidency is how deftly he stabs workers in the back while making many of them think he’s on their side. He’s given “I’ve got your back” a new meaning.

            His administration is dismantling environmental protections for laborers, decimating job safety regulations, and attacking the livelihoods of many of them by triggering tariffs on US goods going to Canada, the European Union, and China. Most of this destruction can be repaired in time once Democrats return to power in the White House and Congress. But more durable damage is being done by the Supreme Court, and there is surely more to come as Trump tees up for his second court appointment.

His first pick, Neil Gorsuch, is remarkably hostile to workers’ rights, and he has been so since before he ascended to the Court. He wrote the 5-4 majority opinion this term in Epic v. Lewis, stripping employees who are forced to sign arbitration agreements from any recourse in the courts over unfair labor practices. And he joined the 5-4 majority in Janus v. American Federation of State, County, and Municipal Employees, stripping public employees’ unions of their ability to collect dues from all workers who profit from the salaries, vacations, health insurance, and other benefits negotiated through collective bargaining.

Gorsuch’s position should have come as no surprise. In a 2016 dissent as an appeals court judge in the Tenth Circuit, he went through bizarre legal acrobatics to uphold the firing of a truck driver who opted to leave his cargo rather than freeze to death on a winter night in Illinois.

When the brakes on his trailer froze, the driver, Alphonse Maddin, phoned for help from his company, Trans Am Trucking, and waited several hours for a repair truck. He was practically out of fuel, the auxiliary power heater for the cabin was broken, and he began to show dangerous signs of succumbing to the subzero temperatures. His cousin, who called him, said that his speech was slurred. His feet felt numb, and breathing was difficult. Finally, in desperation, he unhitched the tractor from the trailer and drove toward safety, returning 15 minutes later after being informed that the repair truck had arrived. He was then fired.

Judge Gorsuch's "Magical Notion"

By David K. Shipler

            Late in the third day of Senate Judiciary Committee hearings on the nomination of Neil Gorsuch to the Supreme Court, Sen. Mazie Hirono of Hawaii summed up the judge’s picture of American jurisprudence with three words: “a magical notion.” She called his portrait of neutral, apolitical judges interpreting the law fairly and without personal bias a Norman Rockwell painting of the courts, as if he himself weren’t being promoted by the dark money of hidden billionaires, as emphasized by Sen. Sheldon Whitehouse in a tough interrogation.

            Through incisive questioning by Democratic senators (Republicans lobbed only softballs), Gorsuch stuck resolutely to his line that there were no “Republican judges or Democrat judges.” In this phrasing he repeatedly allowed his mask to slip, since the use of the noun “Democrat” as an adjective instead of “Democratic” is embedded in the lexicon of the right, designed to deny that opposition party the mantle of representing masses of citizens. He also took several opportunities to mention that judges appointed by “Democrat” presidents had joined him in opinions. In other words, the courts transcend politics.

            It would be a grand gift to the republic if it were always so. It often is, especially on lower courts, such as the Tenth Circuit Court of Appeals where Gorsuch has served for a decade, and which are bound by precedent. He and the two other judges on his panel relied on a particularly cruel precedent when they denied an autistic child payment for private residential educational services that the local school district could not provide. The earlier case in his circuit found that under the law, such schooling “must merely be ‘more than de minimus,’” Gorsuch wrote, adding the word “merely.”

The Nihilist Republicans and Political Bigotry

By David K. Shipler

            Senate Republicans’ pledge to reject President Obama’s Supreme Court nominee who hasn’t been named contains as much intellectual integrity as trying to ban a book you haven’t read. It further politicizes an institution that works properly only above politics, when justices examine the law and the Constitution without regard to their personal preferences. And it could paralyze the Court on key cases, producing 4-4 ties that would let stand lower appeals court rulings but would set no nationwide precedents on matters that cry out for clear resolution.

The ironic fact that this would promote government’s dysfunction and further reduce its stature does not help so-called “establishment” Republicans who are worried about the protest vote being mobilized by Donald Trump and Ted Cruz. Those voters have been energized by the disdain for government, encouraged by the Tea Party movement and other radicals who could be called the Nihilist Republicans, as distinguished from the Responsible Republicans who used to try to govern when they won elections.

Justice Antonin Scalia’s body wasn’t even cold before Nihilist Republicans voiced their political prejudice by stereotyping as leftwing any conceivable candidate who could be proposed by Obama. This is the classic dynamic of bigotry: reject an individual—even an unidentified individual—because of his or her membership in a group. Reject because of the origin. Reject because of who supports the person. It is the same deviant logic that Trump uses to oppose letting Muslims into the country.

In a society that supposedly values individualism over collectivism, judging people by their collective associations rather than by their individual traits violates a basic American ethic—at least one we wish to see practiced.

Labor: A Free Market or a Rigged Market?

By David K. Shipler

Imagine working hard for a big company, say, Walmart, and feeling that your paycheck should be higher. Imagine going to the store manager and asking for a raise. Imagine him saying no—well, you don’t have to imagine that, because that’s the way it will surely be if you’re all alone. But now imagine that all your colleagues, all the cashiers and stockroom workers and salespeople go together to the manager and ask for a raise. Will he take notice? You bet. And if he doesn’t, watch what happens if you and your co-workers threaten to strike.

That’s the simplified sketch of what collective bargaining is about. It is what labor unions do—unions that have become an endangered species in the private American economy, where only 6.6 percent of workers are members, according to the Labor Department’s latest figures, from 2014.

That means that the vast majority of employees, with the exception of highly skilled professionals who are valued enough to negotiate their terms, cannot influence their wages, vacations, pensions, health insurance, or job security. A larger minority of government employees are unionized—35.7 percent at last count, mostly police officers, firefighters, and teachers—but that figure is dropping too, and will probably get another downward kick by the Supreme Court, if the conservative justices rule as they indicated during a hearing this week.

The United States, then, is likely to become an economy with virtually no labor unions if the trends of recent decades persist. About one-third of American workers were union members fifty years ago, and just over one-tenth are today. What are the implications?

The Next Affirmative Action

By David K. Shipler

            College admissions officers who want racial diversity on campus have been playing a cat-and-mouse game with a conservative Supreme Court that dislikes racial preferences. The next probable step, once the Court decides the case it heard today (Dec. 9), is to shift from race to socioeconomic class as a means to assemble a creative variety of students. This would have pluses and minuses as a substitute for race-based affirmative action, which the Court seems poised to restrict severely or to strike down entirely in the current case, Fisher v. University of Texas.

            Class could be used as a proxy for race and ethnicity, given the overrepresentation of African-American and Latino households at lower income levels in the population as a whole. But the blacks and Latinos admitted to the most selective universities would be very different from those who get in under current racial preferences, large majorities of whom are middle- or upper-class, with only tiny fractions from poor backgrounds.

            “At the top twenty law schools, 89 percent of African Americans and 63 percent of Latinos (and even higher proportions of whites and Asians) come from the top socioeconomic half of the population,” writes Richard D. Kahlenberg, citing a 2011 study, while only 2 percent of all law students in those schools come from the bottom quarter. “Another study finds that the proportion of black students at elite colleges coming from the top quartile of the socioeconomic distribution increased from 29 percent in 1972 to 67 percent in 1992.”

A Constitution Informed by Social Change

By David K. Shipler

            If you spend time reading the Supreme Court’s majority and dissenting opinions in the landmark same-sex marriage case, a transcendent principle jumps out at you. It has little to do with the definition of marriage or the widening acceptance of homosexuality. Rather, it is the notion that society should be alive to its own injustices, even those unseen in the age when solemn constitutional texts were written. Later—nearly 150 years later in this instance—practices that were once acceptable emerge as violations of the rights set down at a very different time.

This is the crux of the ideological dispute between conservatives and liberals on the Court, and it is articulated in this case with unusual clarity. The conservative dissenters define liberty in the narrowest terms—to Clarence Thomas it means freedom from physical restraint and imprisonment, nothing more.

To Antonin Scalia, the clock simply has to be turned back to the date of the post-Civil War Fourteenth Amendment, whose clauses banned the states from denying any person “the equal protection of the laws” or depriving anyone “of life, liberty, or property, without due process of law.” Those were the provisions that the Supreme Court found were being violated by denying same-sex couples the right to marry.

Scalia scoffed. “When the Fourteenth Amendment was ratified in 1868,” he wrote, “every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” Case closed.

Compare that with Anthony Kennedy’s fluid view of liberty in his opinion for the slim 5-4 majority. Kennedy is not easily categorized as liberal or conservative; he is often a swing vote. Here, however, he effectively endorses the liberal concept of a living Constitution by emphasizing its place in a shifting world.