A Sad Day for America, A Sad Day for the Supreme Court, a Sad Day for Law

The American legal system has no ability to enforce it’s own law, no real inherent claim to it’s own legitimacy. It has power because we respect it’s legitimacy and the rest of our government abides by their rulings. If we get down to it, rule of law exists because we have precedent, so we accept there is a framework beyond base opinions of nine people on the high court giving us edicts based on their own opinions. Once you remove that framework, you simply have tyranny by any five people on the bench. It doesn’t matter if they are liberal or conservative, the other half of America is going to struggle to accept that.

In the past 24 hours the Supreme Court has overruled precedent twice to rule that the states are incapable of regulating conceal carry gun laws but they are capable of regulating the right of women to abortions. In both cases they have abandoned precedent, but for entirely different rationalizations. It makes no common sense. They are arbitrary. The court has done great harm to itself as an institution. It has harmed respect for our law.

In the President’s remarks today, he noted that there is no executive action that can undo this ruling. He is right. Presidents have no special powers to make laws, only the act of enforcement is within their power. You do not want to live in a country where Presidents decide law by fiat and pick and choose what to enforce. President Biden was right to say today that Congress should pass a law to codify Roe. I think we all know that the current Congress cannot, it is far too closely divided and one of it’s two parties will vote nearly unanimously against it. This leads to the third, and most correct thing the President said- the most powerful response to this action is to vote. You get the government you vote for. You had five judges, all appointed by Republicans and almost entirely confirmed by Republicans, who took today’s action. If you elect Republicans, or just don’t show up to vote against them, this is what you will get. You can certainly say Democrats are not perfect on the issue, or that you don’t like that they have a few pro-life members in Congress, but here’s reality- all three Democratic appointed judges dissented with today’s opinion, and there would be no less than two more judges there agreeing with them had Hillary Clinton defeated Donald Trump in 2016. Democrats have been losing elections in America for most of my lifetime. That’s how we got here.

None of this process talk does the issue justice though. For the last 50 years women had a constitutional right, and today that was taken away from them. The state has no fundamental reason to regulate reproductive rights of women other than a political preference for control. The autonomy to make their own reproductive decisions has improved health outcomes for women and allowed women to leave their homes for the workplace. The right to make their own decisions on pregnancy and contraception has allowed women to make great advancements in our society. Yes, there are tens of millions of pro-life women that live pro-life lifestyles in this country, but the point is that they get to decide so, not the government. It is impossible to gauge the 50 year impact today’s decision will have with precision, however it is very easy to listen to those impacted by this decision today and gauge the impact on them. For poor women in conservative states, their autonomy is simply gone today. Even for some affluent women, their real world ability to make their own decisions has virtually vanished. Those directly impacted don’t need to wait and see about this ruling. They know today.

If you think this is the end of this court’s rights grab, you’re sorely mistaken. Judge Alito attempted to do intellectual gymnastics in saying his ruling was limited just to Roe and not other rights covered under the right to privacy. Judge Thomas didn’t even attempt this, instead writing in his concurrence that the court should now look at contraception, gay marriage, and other areas of law that fall under the right to privacy. Any halfway intelligent person can realize that if Alito says Roe was wrong because it was not a clearly enumerated write in the 14th Amendment, he and his four colleagues can’t argue differently about interracial marriage, same sex marriage, contraception, or really any other personal right previously protected under this rationale. In short, we’re now on a slide to a pre-1960’s America where the state can and will make moral decisions for the individual.

The court not only delegitimized itself today, it harmed half it’s own population. Three judges appointed by a President unpopularly elected and four judges appointed by one term Presidents took a right away from a majority of the population. Five judges decided to throw precedent out the door multiple times this term. The stability of our law has been removed by five activist judges. Yet all we can do under our system is vote out as many elected officials who agree with these five justices as possible. Yelling louder doesn’t fix it. Our options are limited.

It’s a sad day in America.

The Impossible Presidency

I’m not saying things were easy for Bill Clinton, being President is hard. It was easier than it was for Barack Obama though. Being President was hard for Barack Obama, I’m sure of it, but it was probably easier than it is for Joe Biden though. You probably are scratching your head and asking how I came to this conclusion, and where I’m going with this. The fact is, foreign relations are considerably harder today than they were right after the Soviet Union fell. The federal courts were much easier to navigate pre-Trump. The steady decline of Congress is 30 years further along than they were when Clinton came to town. The Republican Party’s decay is accelerating in the post-Bush world. And yes, Joe Biden faces more opposition within the Democratic Party than any Democratic President in my lifetime.

It’s amazing the guy wants the job.

In the moment after the Berlin Wall fell, America was the lone super power to shape the direction of the world. In the time since a lot has happened. Globalization has accelerated. Terrorist groups replaced foreign nation-states as the chief threat to our borders. The wars in Iraq and Afghanistan drained our treasury, lost us lives, and diminished our global standing. Maybe most important though, China emerged as a super power and Russia took a newly aggressive posture towards us under Vladimir Putin. A new anti-democratic consensus emerged among our rivals, challenging our world view. Attempts at more normal relations with Cuba and Iran didn’t go very well. Amidst all this, we had our first post-World War II Presidency where the United States questioned our own commitment to our European alliance. In other words, the world just ain’t what it used to be, and I’m not even diving into global issues like climate change.

Presidents Clinton and Obama faced Supreme Courts that were at times adversarial, but they had 5-4 conservative majorities. During their Presidencies, the Solicitor General could defend government actions at the court by focusing on one or two potential swing justices. Sandra Day O’Connor and Anthony Kennedy could be persuaded to allow the government to act on legitimate issues and even to protect the rights of the marginalized on some matters. President Biden faces a Supreme Court, and federal court system radicalized by Donald Trump. There are now six Republican appointees on the bench, and the Biden Administration needs to win over two of Chief Justice Roberts, Justices Gorsuch and Kavanaugh. The court is showing an open willingness to ignore precedent and act from the bench that we haven’t seen in generations. Worse yet, four of the six Republican appointees are likely to be there for decades to come, so change is very unlikely to come to that branch. Civil rights and government power are likely to be seriously narrowed, and the only option President Biden and future successors have to push back is to eventually either try to get Congress to expand the court (dead end right now) or provoke a Constitutional crisis. This is not workable.

Congress no longer works. There simply aren’t dealmakers on the Hill to get much done with anymore. Like his recent Democratic predecessors, President Biden got a stimulus bill through to deal with the economy, and one major generational bill (infrastructure), and then everything ground to a halt. Even consensus issues like insulin prices, gun safety measures, and raising the minimum wage to at least $12 go to Congress to die. Narrow Democratic majorities are undone by both the filibuster and more aggressive House progressives forcing demands on bills that can’t be squared up. The reality is that Democrats are unlikely to see massive majorities into the future either. With the Rockefeller Republicans long dead, and the Blue Dog Democrats close behind, there’s simply no one to make deals with on Capitol Hill, no way to build legislative consensus. Democrats can only pass legislation where they either have near unanimous support in their own caucus of both houses, or where the bill is so non-controversial that everyone is ready to go along. This is a problem for a nation facing crises with climate change, guns, public education, immigration, and health care. The main goal of many new members of Congress is to get a seat on an oversight committee where they can yell at witnesses and use props to get internet attention, not to get a seat on Appropriations where they can find actual solutions. In short, Congress doesn’t work.

Once upon a time, the Republican Party was an actual governing party. No Child Left Behind was their education policy. Welfare Reform was an actual bill. There was a bipartisan “Gang of 8” immigration bill that John McCain and George W. Bush tried to pass. President Nixon (!) created the EPA. When deficits soared after the 1981 tax cuts, Presidents Reagan and Bush 41 accepted the reality that some tax increases were necessary. President Bush 43 sent record funding to Africa to fight the AIDS epidemic. Some of this was good policy, much of it in my opinion was bunk- but these were policy positions. A political party must have some ideas if they want to be a political party. Basically since President Bush’s failed 2005 attempt at reforming Social Security, the Republican Party has completely abandoned any sort of coherent policies in favor of slogans and “own the libs.” The GOP of today is a grievance party, nothing more and nothing less. They want to cut off immigration with a wall on the border, shame transgender athletes, and make voting harder if they don’t win elections. During the Trump White House their only major achievements on Capitol Hill were a massive amount of federal judges, a major tax cut bill, and “phase 1” of criminal justice reform, which was basically all the really easy stuff nobody objected to. While they talked about major changes to NAFTA and trade agreements, the changes we got were virtually nonexistent. They promised a border wall, but never delivered it. Basically, you got infrastructure week, on repeat, with no infrastructure bill. It should come as no shock that they are proposing no solution to get more workers into the supply chain right now, or that their plan for gas prices is “drill baby, drill,” when we drilled more in 2021 than we did in 2017. They are not a serious party. Their most “successful” policy in implementation was banning Muslims from entering the country for no reason. This is our “partner” party to negotiate with, a party that idolizes Jim Jordan and nominates Herschel Walker and Dr. Oz for Senate. The GOP is completely broken.

As if all of that wasn’t enough, Joe Biden contends with a Democratic Party that more accepted him than wanted him. Had it not been for the wisdom of Black voters coalescing behind President Biden in South Carolina, would white moderate Dems have got their act together and coalesced behind the only electable candidate in the field? While the party rallied behind the Biden-Harris ticket during the election, the White House has faced more attacks from inside the party than any in recent memory. Congressional Democrats and Vice-President Gore had a rally for President Clinton when he was impeached, while Joe Lieberman’s career ended after he opposed Barack Obama in 2008. Today, Elizabeth Warren and Chuck Schumer take to Twitter regularly to criticize President Biden for not using an executive order to forgive student loan debt at levels he never promised to during the campaign. AOC and “The Squad” mostly voted against Biden’s biggest achievement as President, the infrastructure bill. Vice-President Harris routinely faces tough articles from “inside sources” at the White House, criticizing her work and staff members exiting the building. There is open talk of who should run for President in 2024, from Democratic sources, if President Biden does not. When the President speaks on matters of policy, as he recently did about Taiwan, anonymous White House sources race to the media to “correct” what he said to meet their policy objectives. In short, the President and Vice-President do not enjoy unanimous support from their party, far from. Some of this is kind of obvious- in an era where identity and “self expression” drive our politics, an old, straight, white man is leading the Democratic Party, and a chunk of the party wishes they had a different voice. The bigger problem that President Biden faces that President Clinton never really faced, and President Obama only kind of faced, is a shifting geography of Democratic elected officials and activists. The large bulk of Democratic members of Congress, state legislators, and municipal leaders represent super blue urban areas and very diverse suburbs. Most Democratic votes and donations come from those districts. Unfortunately there are not enough of those districts to build a working majority, and people who want White Houses and Congressional majorities need broader electoral appeal than these folks want. When you combine those geographic tensions with a louder, more independent critics class inside the party, you get a President facing larger scale defections in his party than we’ve seen since the 1980 primary season. There is simply now a chunk of voters left of the political center now who demand either a more leftist ideology from the party, or an identity for the party that matches their view of where the votes are from. Joe Biden doesn’t really meet either of those demands, and so he lacks the rock solid support of Democrats in the recent past. While the reality is that these demands make the party unelectable, trying to convince some people of that is seemingly impossible.

Joe Biden inherited a pandemic, a government rocked by scandal, an economy that was shut down, a Capitol that had just been the victim of an attempted coup, and a job that was already extremely difficult because of trends facing our nation that I outlined above. Some of the problems he’s had were predictable, others were not. I have to wonder out loud if there was ever going to be a way to appease the nation in his position. Governing is hard enough, doing it while at the center of a hurricane is nearly impossible. I think he’s doing a good job, I’m just increasingly wondering if anybody cares.