This February, the U.S. Supreme Court will celebrate its 233rd birthday. Twice before over that quarter millennium, the Court has precipitated national crisis by attempting to move into the center of power and govern the country from the bench. The first crisis arose during the 1850s, when a Court dominated by slaveowners decided to end the slavery controversy by awarding total and permanent victory to the South. The second took place during the 1930s, when a majority of the “nine old men,” in the face of national upheaval, set out to block any attempt at progressive government, labor rights, or economic justice.

The Court has now triggered a third crisis, as its newly installed majority moves to upend both established constitutional precedent and vital democratic norms. What the result will be is impossible to predict. Just as in the 1850s and the 1930s, the Court’s aggressive actions have sparked a dangerous situation that threatens generations of progress toward genuine democracy. As a nation, we like to believe that we are an exception to the somber lessons of history, that somewhere above us hover the “better angels of our nature” who can be counted on to ensure that the Republic will not only survive but prosper. 

But this is a fantasy. We will never escape the current danger unless we face the facts. 

In the first two crises, the Supreme Court’s motive was the same: to return America to the grandeur of an imagined past. For the Dred Scott Court, that was a golden age when the dominance of the white man was eternal, absolute, and beyond question; for the pre-1937 Court, paradise lost was the brutal grandeur of the Gilded Age, when the U.S. Constitution was read as absolute protection of massed wealth and privilege, and barred any concession to human equality. 

In our time, the Court’s aggressive stance flows from a deep well of conservative resentment at the social changes of the past 50 years—at the very idea of a multicultural republic, of changes in the status of women and the liberty of sexuality, and of any challenge to the cultural dominance of a peculiarly white American strain of conservative Christianity.

Whatever former President Donald Trump’s own future may be, he lives on in a Supreme Court determined to Make America Great Again. 

The Supreme Court in 2022 is an entirely different institution from the Court of 2016. Most obvious is the turnover of personnel. Four new justices have joined the high bench since then—as many as turned over in the previous 16 years. But the Court has also drastically changed its jurisdiction and procedures, most importantly with the rise of the emergency, or “shadow,” docket—a toolbox of temporary emergency orders and procedures that allows the justices to intervene in lower-court cases at any point it chooses, awarding “provisional” victory to favored litigants. The Court has used the shadow docket to intervene without allowing trials in the district courts, oral argument in any appellate court, full briefing by the parties, participation by the public through “friend of the court” briefs, or sometimes, in the end, any explanation—only a one-line order that often does not even make clear which justices voted which way. The shadow docket has become a kind of appellate star chamber, resolutely closed to the public or the parties, and aggressively wielded in aid of the Court’s reactionary project. 

Most important, of course, is a new jurisprudence, unveiled in the raft of radical decisions at the end of the 2021–22 term. The results were startling enough—an end to constitutional abortion rights, a sweeping expansion of Second Amendment gun rights, and a stunning cutback in the government’s power to address the climate crisis. Equally startling was the Court’s new method of reaching results. Precedent no longer matters, the justices have said, if five members of the current Court consider a line of cases “egregiously wrong.” That category, the new majority hints, sweeps into one wastebasket the major civil society landmarks of the past half century—cases that have enhanced racial and sexual equality and LGBTQ rights.

For this Court, and for constitutional law in the 21st century, 2022 is Year Zero. Nothing is settled law; nothing is certain. 

What happened? The change in the Court is the result of a sustained, highly organized, entirely conscious campaign to annex the federal judiciary to the political party system. It is not just a matter of a change in judicial personnel—in the wedging, through banana republic tactics, of three hard-right justices onto the Court. That change has taken place amid a profound and irreversible shift in the very idea of law, and in the meaning of judicial independence. Though we can look back at the historical record and see where both sides have broken the norms that undergirded the old system, the recent assault did not come from “both sides.” It was initiated, organized, and conducted by the GOP, the conservative legal movement and its billionaire backers, and the politicized wing of white evangelical Protestantism. 

Democrats and progressives have responded, spasmodically, clumsily, and to little effect, but they too have made statements and taken actions that violate traditional ideas of respect for judicial independence. One could argue that this response is not only appropriate but necessary—because a norm that binds only one side of a dispute is not a norm; it is a trap. The Court’s majority has thrown in its lot with the right wing of the GOP, and we must deal with it as the partisan institution it now is. 

The story begins in February 2016, when Justice Antonin Scalia died suddenly. Though in actuarial terms a vacancy on the Court had been looming for some time, the news of Scalia’s death seemed to catch Washington’s grandees by surprise—with one exception. Within two hours of the announcement, Senate Majority Leader Mitch McConnell had stated that President Barack Obama should not be permitted to fill the vacancy, and in the remaining few months of Obama’s term, McConnell was able to block both hearings and a vote on Obama’s nominee, then Judge Merrick Garland. 

There’s more to that story than meets the eye. Though McConnell pretended to base his intransigence on democratic principles—the next president should pick the next justice, he asserted, since the end of Obama’s term was relatively near—neither he nor his conservative backers even tried to make that claim persuasive. The real objection to Garland, openly expressed, was the looming failure of three decades of effort at a conservative takeover of the Court. Republican Senator John McCain supported the blockade of Garland, but warned that if Hillary Clinton was elected in the fall, he would oppose any nominee she offered during her four-year term. “The Senate is fully within its powers to let the Supreme Court die out,” Cato Institute counsel Ilya Shapiro wrote in The Federalist. 

On March 6, even after McConnell’s pledge to block a nominee, Republican Senator Orrin Hatch had publicly suggested that, if Obama nominated Garland, Hatch would support him. Hatch, a former Senate Judiciary Committee chair, was respected on both sides of the Senate aisle and had spent more than 35 years in the judicial confirmation business. As early as 2010, Hatch had been pushing Obama to nominate Garland instead of a more liberal nominee. Garland had been seen for some time as a conciliatory centrist nominee who in a normal time would attract significant Republican support. Obama went ahead with the nomination 10 days later. Hatch refused to support it.

Blocking the Garland nomination set off a fairly complex political earthquake. In May 2016, Donald Trump announced that, if elected, he would pick Scalia’s replacement from a list of 11 sitting federal judges—all of them white, all but three of them male, and every one of them chosen with the approval of the conservative Federalist Society and Heritage Foundation. Until that moment, the economic, political, and religious groups for whom the Supreme Court was a dominant political issue had hung back from candidate Trump. Though Trump was now taking a hard conservative line on the courts, he was a former Democrat, and one who had once proclaimed himself pro-choice. Considering Trump’s erratic personality, and his random musings about the courts, these groups reasonably feared that his nominees might be random or whimsical, rather than ideological—TV personalities like Jeanine Pirro, for example, or cronies like former New York City Mayor Rudy Giuliani, or even his own sister, Judge Maryanne Trump Barry, whom the right loathed for her willingness to enforce abortion rights precedent. But now Trump made them a solemn promise that he would name only the judges they approved. 

This may be the only promise Donald Trump ever kept. 

That list changed the entire campaign. In a larger sense, many observers believe it is the reason why Trump got the party’s nomination in July and came out of the convention with a unified party behind him, then eked out an electoral win despite losing the popular vote in November. It was important in another way: It marked the first time in history that a presidential candidate produced a list of specific names from which he would pick his Supreme Court nominees. It put the Court—not its overall direction, but the specific names of potential members—on the ballot for the first time. In 2018 and 2020, as well, specific judicial nominees—Brett Kavanaugh and Amy Coney Barrett—became part of the electoral mix. Trump’s list also signaled to certain sitting federal judges that they were under consideration for the Court—a signal that might very well affect their conduct in high-profile litigation in the meantime. By 2020, Republicans began to demand that candidate Joe Biden release his own list, as if naming specific judges in advance were a normal part of politics rather than a gross violation of judicial norms. 

The attack on judicial independence was well under way by this time. Even before Scalia died, Trump’s campaign speeches featured scathing attacks on Chief Justice John Roberts, a profoundly conservative George W. Bush nominee, because Roberts had voted with the liberals in one important case—the 2012 challenge to the Affordable Care Act. Trump’s nominees would never deviate from the conservative legal movement’s line, he implied. In fact, in October 2016, Trump assured American voters that his Supreme Court justices, once safely seated, would “automatically” overturn Roe v. Wade. 

Thus, by Election Day, Trump and the Republicans had firmly lashed the nature of the Supreme Court to party politics. But Trump was not only promising a specific result in a specific case, radical as that promise was; he was also systematically calling into question the legitimacy of any court that defied the will of the conservative legal movement—or, for that matter, Trump’s own preferences. 

That attack had begun before he was elected: In June 2016, Trump took aim at Judge Gonzalo Curiel of the Southern District of California. Curiel, an American citizen born in Indiana, had refused part of Trump’s motion for summary judgment in a civil fraud case against Trump University. After apparently brooding over this slight, Trump exploded, calling for an investigation of Curiel because he was “Mexican” and thus anti-Trump. 

The Curiel attack produced signs that Trump’s disdain for judges and the law was being noticed within the Court’s marble palace. Shortly after candidate Trump’s attack on Curiel, Justice Ruth Bader Ginsburg dropped her mask in an interview with Adam Liptak of The New York Times: “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president,” she said. She noted the ages of some of her fellow senior justices, and suggested that a Trump presidency could reshape the Court in a malign direction. “For the country, it could be four years. For the Court, it could be—I don’t even want to contemplate that.” Four days later, in a written statement, she apologized: “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.” The words, however, could not be unsaid. They crossed a line against public partisan statements; but, of course, they simply expressed the alarm many people within and outside the court system were feeling. In that sense, they were what journalists call a “Kinsley gaffe,” in honor of Michael Kinsley, the renowned editor who first identified the phenomenon by which a public figure gets into trouble by saying something everyone knows to be true. 

The threatening attack on Curiel and on the legitimacy of a court was only the first of many that came from Trump before and during his term in office. When, in February 2017, District Judge James Robart of Washington enjoined Trump’s first “travel ban” aimed at Muslim countries, Trump promptly attacked him as a “so-called judge.” When District Judge William Orrick III of California stayed an executive order attacking “sanctuary cities,” an official White House statement accused Orrick of presenting “a gift to the criminal gang and cartel element in our country.” When the Ninth Circuit Court of Appeals refused to lift Orrick’s order, Trump publicly threatened to break up the court. (It was a threat that he apparently saw as genuine: The journalists Peter Baker and Susan Glasser write in their new book, The Divider: Trump in the White House, 2017–2021, that after the sanctuary cities ruling, Trump ordered his homeland security secretary, Kirstjen Nielsen, to “cancel” the court and “get rid of the fucking judges.”) When District Judge Derrick Watson of Hawaii enjoined the second travel ban, Trump said Watson ruled against him “for political reasons.” When District Judge Jon Tigar of California enjoined an executive order restricting the ability of migrants to apply for asylum, Trump said, “This wasn’t law, this was an Obama judge.”

By November 2018, the attack on Tigar, coming at the end of a drumbeat of assaults on judges, produced something beside which Ginsburg’s indiscretion seemed minor—a sitting chief justice directly rebuking the president: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in an official Court statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Even more remarkably, the president, rather than accept the rebuke, tweeted a counterattack, aimed at the chief justice by name: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” As a grace note, Trump used scare quotes to ridicule the very idea of independent judges: “It would be great if the 9th Circuit was indeed an ‘independent judiciary.’ ” 

In his fourth year in the White House, Trump lifted his judge-bashing sights and demanded that Justices Sonia Sotomayor and Ruth Bader Ginsburg recuse themselves from “all Trump or Trump-related matters.” His excuse for attacking Ginsburg was her 2016 statement; the claim against Sotomayor was that, in a shadow docket dissent, she had criticized the Supreme Court majority for being too eager to use its emergency powers to set aside challenges to administration initiatives. The party in that case was the secretary of homeland security, or, in other words, the U.S. government—not the president officially, and certainly not Trump personally. But it was clear by this point that Trump regarded himself as the government, and the courts as underlings.

Some of the judges Trump attacked had to have special security assigned to them afterward to deal with the threats they received. Of the handful of judges Trump attacked by name, two were Latino, one was Native Hawaiian, and two were Jewish. 

Trump had attacked Ginsburg even before he entered the White House, but his rhetoric took on the level of actual threat when directed against another Jewish target, Judge Amy Berman Jackson of the District Court for the District of Columbia. Jackson had presided over a jury trial in which Trump’s longtime crony Roger Stone was convicted of lying to Congress and tampering with witnesses during a congressional investigation into Russian meddling in the 2016 election. Stone displayed flagrant contempt of court, at one point posting to Instagram a photograph of Jackson with rifle cross hairs near her face; now, as the sentencing drew near, the president waded in with mob-style musings about the judge. Nine days before Jackson was to sentence Stone, Trump tweeted a demand that she grant his friend a new trial based on a flimsy allegation against the foreperson of the jury. 

At this point, the president had arguably slithered from impropriety into crime—attempting to corruptly influence or intimidate a federal judge presiding over a criminal prosecution. (Under 18 U.S.C. § 115, conviction of making such a threat can carry a maximum 10-year prison sentence.) The overstep was so blatant that the chief judge of the D.C. District Court, Beryl A. Howell, issued a Roberts-style rebuke: “The Judges of this Court base their sentencing decisions on careful consideration of the actual record in the case before them; the applicable sentencing guidelines and statutory factors; the submissions of the parties, the Probation Office and victims; and their own judgment and experience.”

The caution did not discourage either Trump or his attorney general, William Barr. After the unseemly attack on Jackson, Trump blasted the Justice Department lawyers trying the case for requesting a “horrible and very unfair” sentence. Barr, on the same day, ordered the trial team to alter its recommendation and sharply reduce the penalty requested. The career DOJ lawyers then withdrew from the case. Jackson sentenced Stone to 40 months in prison—and Trump then commuted the sentence to eliminate prison time altogether.

The Roger Stone commutation was a gross misuse of the presidential pardon power, but hardly the worst. Trump’s most notorious pardons, of course, were issued to former members of his own entourage—Stone; former campaign manager Paul Manafort; campaign aide George Papadopoulos; campaign strategist Steve Bannon; and former National Security Adviser Michael Flynn. But in his assault on the very idea of independent courts, the most important pardon was his first—that of the former sheriff of Maricopa County, Arizona, Joe Arpaio, on August 25, 2017.

If in retrospect the sensation of shock still had any meaning, the Arpaio pardon, coming almost at the beginning of the new administration, would be shocking. Arpaio had been convicted of “criminal contempt” of the federal district court in Phoenix, because he “willfully” violated a direct court order to stop his deputies from detaining Latinos in the county based on nothing more than their national origin. In her opinion, District Judge Susan Bolton wrote, 

Credible testimony shows that the Defendant knew of the [District Court’s] order and what the order meant in regards to the [Sheriff’s Department] policy of detaining persons who did not have state charges for turnover to ICE for civil immigration violations. Despite this knowledge, Defendant broadcast to the world and to his subordinates that he would and they should continue “what he had always been doing.”

Trump’s pardon—announced on Twitter before Arpaio had been sentenced—sent a powerful message to law enforcement personnel who might be tempted to emulate Arpaio’s lawlessness: The president was on their side, even if they defied the courts. And it sent the converse message to judges: Trump shared Arpaio’s contempt for them and for the law and Constitution they were charged with enforcing—and if they displeased him, he would overrule them. 

Viewed month by month, these events illuminate a steady drumbeat of attacks on the idea of courts as institutions independent of politics or the executive branch. That these were not merely whims of the unpredictable Trump was made clear by the willing participation of his attorney general, a previously respected figure whose years in Washington had earned him a reputation as an “institutionalist” who understood the need for the Justice Department to remain independent of partisanship. In a speech to the Federalist Society in November 2019, however, Barr laid out a thoroughly Trumpist view of the Constitution as an order where the courts are subordinate to the executive branch. Federal court rulings against the administration, and congressional investigations of its conduct, he said, were largely illegitimate. Trump’s offenses, in fact, merely involved breaches of etiquette—and embodied the popular will: “While the president has certainly thrown out the traditional Beltway playbook and punctilio … he was up front about what he was going to do and the people decided they wanted him to serve as president,” he said. Nonetheless, he said, the courts had defied Trump:

In recent years the judiciary has been steadily encroaching on executive responsibilities in a way that has substantially undercut the functioning of the presidency. And the courts have done this in essentially two ways. First, the judiciary has appointed itself the ultimate arbiter of separation-of-powers disputes between Congress and the executive, thus preempting the political process, which the Framers conceived of as the primary check on interbranch rivalry. And second, the judiciary has usurped presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the executive[’s] in areas committed to the president’s discretion, or (b) by assuming direct control over realms of decision making that heretofore have been considered at the core of presidential power.

Together, the Arpaio pardon, the attorney general’s “warning” to allegedly overreaching judges, and the joint attack by Trump and Barr on Judge Jackson sent a powerful message of disrespect, contempt, and defiance of the judiciary. All these formed an unavoidable political and psychological background as the Trump administration went about remodeling the U.S. Supreme Court. 

That remodeling was part and parcel of the assault on law. And in early 2017, amid the furor over Trump’s travel ban, the White House took an initial step in that process by unveiling its first Supreme Court nominee, Neil Gorsuch. 

The Gorsuch nomination arrived bearing a partisan stench—the vacancy he was named to fill only existed because of Mitch McConnell’s insistence on blocking the Garland nomination at the end of Obama’s second term. Though the Gorsuch hearings unfolded with an air of normality, the Democratic bitterness about the “stolen seat” was palpable and culminated in a Democratic filibuster against the nominee. McConnell then invoked the so-called nuclear option, which removed the filibuster from Senate rules regarding high court confirmations. Gorsuch was confirmed, 54–45, on April 7. 

Partisan appearances did not seem to bother either the nominee or his Senate patron. On September 21, Gorsuch made twin appearances in Kentucky alongside McConnell, who introduced him to audiences in Louisville and Lexington with words of self-praise for his nomination and confirmation. 

It is easy to forget that McConnell’s Senate seat is an elective office, and the majority leader faced reelection in 2020. Press observers were quick to note that the appearances had some of the air of a campaign swing, with Gorsuch, who owed his seat to the senator, praising McConnell to his constituents. This seeming partisanship raised some eyebrows at the time; though friendships, and even collaboration, between politicians and justices were not unknown, such an overt display of gratitude and implied electoral support was highly unusual. 

Gorsuch also appeared a week later before a conservative group at the Trump International Hotel, sending a pointed signal about where he stood in Washington’s partisan wars. And the Kentucky victory tour, it turned out, was the first of what became a seemingly obligatory pilgrimage by Trump Supreme Court nominees to praise McConnell in front of his political constituency.

The Court itself, meanwhile, began to display a remarkable degree of deference to Trump—and to tolerate some overt displays of contempt by the administration. In April 2018, with Gorsuch newly seated, the justices heard arguments over the third and final version of Trump’s travel ban. In a surreal moment, then Solicitor General Noel Francisco assured the justices that the president’s order had no relationship to his promised “shutdown” of Muslim immigration, his frequent statements that “Islam hates us,” or his repeated musings about closing mosques in the U.S. “The president has made crystal clear, on September 25, that he had no intention of imposing the Muslim ban,” Francisco told the Court. “He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries of the world.”

This statement was, to coin a phrase, a tissue of lies. Trump had not, in fact, withdrawn his Islamophobic comments, and he had refused to apologize. In addition, there had been no presidential statement on September 25. Francisco submitted a letter to the Court on May 1, retracting the reference to September 25; he cited, instead, a relatively ambiguous statement by Trump on January 25, 2017, that the first “travel ban” was “not the Muslim ban, but it’s countries that have tremendous terror.” Conspicuous by their absence in that interview were any words about “Muslims who love this country.” That part of Francisco’s statement seemed to have been invented out of whole cloth. 

Though this was not the first time in history the solicitor general’s office had made inaccurate representations to the Court, a blatant misstatement of fact is unusual and was, to Court observers, disturbing. The solicitor general is known in Court circles as “the tenth justice,” because the Court has often relied on that office’s advice about whether a given case is worthy of consideration or not. Constitutional norms for decades had required solicitors general to maintain some independence from the administration they serve, with a parallel duty to furnish truthful and disinterested advice to the Court. (Francisco’s misstatement was so blatant that it triggered comparisons to the systematic falsehoods the solicitor general’s office had tendered to the Court during the Japanese internment cases at the end of the Second World War.) But the administration paid no penalty when the Court issued its decision in the travel ban case in June 2018. In an opinion by Roberts, a five-justice majority approved the ban. Roberts did not even inferentially note that the administration had lied to the Court; Trump’s consistent promises of a “Muslim ban,” and his virulently Islamophobic statements, Roberts wrote in Barr-like terms, were irrelevant: 

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

The opinion demonstrated extraordinary deference to a president’s “neutral” proclamation. Considering that every Republican justice voted for the ban, and every Democratic justice voted against it, the picture as of June 2018 was of a highly partisan majority eager to defer to even the most extravagant initiatives of the Trump administration.

In addition, as the University of Texas professor Stephen Vladeck pointed out, the Court majority had by this time begun to employ emergency orders, often unsigned and unexplained, to support Trump’s most controversial policies. Vladeck noted that the new conservative majority had apparently come to see any delay in the implementation of a Trump administration program as an “irreparable harm” to the government. 

The solicitor general’s office had traditionally been loath to ask the Court for “emergency relief” in any but extraordinary circumstances—in cases such as death penalty appeals, for example, or genuine emergencies that demanded an immediate decision. Under Trump, the office had begun to seek these shadow orders so regularly that it seemed the administration regarded the Court almost as an administrative agency whose function was to assure the smooth implementation of Trump’s agenda without meddling by lower courts. It was a role the new majority was happy to play. 

Even though he had gained more sway over the Supreme Court than any president since Franklin D. Roosevelt, in the spring of 2019 Trump demonstrated that he was willing to threaten dire consequences unless judges, like executive officials, complied with his wishes at once and without question. 

The occasion for this display was the census case, Department of Commerce v. New York. Almost from the moment it had arrived in Washington, the Trump administration had begun to advocate for a new question on the 2020 census form that asked whether every member of a household was a U.S. citizen. Census Bureau experts warned that adding such a question would discourage immigrant households from responding at all because of a fear that immigration authorities would gain access to the information. This reluctance would reduce the accuracy of the count. But that reduction in accuracy, it seemed clear, was the aim. Smaller numbers of immigrant responses would mean that areas with high foreign-born populations—largely urban areas that tended to vote Democratic—would be undercounted. Since legislative seats, and many federal aid programs, are allotted based on population figures, this would shift political power and federal resources to older, whiter, more rural, and more Republican areas. 

But even in 2019, “This will help the Republican Party” didn’t pass judicial muster as a reason for changing the constitutionally required census, so the new administration began a desperate search for another rationale. Commerce Department officials urgently asked other cabinet departments to find a reason, any reason, for needing citizenship data. Those officials refused. After the Justice Department denied such a request, high-level political intervention forced career employees to backtrack and send one, claiming (falsely) that the numbers were needed to enforce the Voting Rights Act. 

Once the question was adopted, citizen groups and the governments of immigrant-heavy states and localities, led by the state of New York, filed suit to block it as a violation of the Constitution and the Census Act. On June 27, 2019, the Court decided against the administration, 5–4. Roberts joined the four Democratic appointees; in his opinion, he wrote that a theoretical decision to include the question would be well within the government’s proper power, both constitutionally and as a matter of statute. This question, however, was “arbitrary and capricious” (and thus invalid in administrative law terms) because the administration had corrupted the process. “Our review is deferential,” Roberts wrote, but “we are not required to exhibit a naiveté from which ordinary citizens are free … If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.” This was judicial language for “pants on fire.” 

But an empty ritual was clearly what Trump had expected, and he reacted with fury, announcing on the same day that he would delay the census until the Court could be convinced to approve the question. That possible delay was, it turned out, illegal—the Census Act lays out a timetable for the decennial count and does not give the secretary of commerce the power to change it. But eight days after the decision, Trump revealed that he was considering adding the question by executive order. This would not be outright defiance of the Court, administration officials explained. Because the Court had held that the Voting Rights Act justification was false, all that would be needed, the argument ran, was a less ridiculous justification. As soon as the administration thought of one, the question could be placed on the census form. 

A brand-new justification was theoretically possible—but probably only theoretically, because a new rationale for the question would have had to be extracted from the record of the Census Department’s deliberations and then subjected to a process of review that, under ordinary circumstances, takes years but would need to be completed within a week or two. Beyond that, it would have required admitting that officials from the Commerce and Justice Departments had lied to the Court. 

Lurking in the background was the idea of a direct challenge to the Supreme Court’s authority. Only a few days after oral arguments, a reliably pro-Trump legal blogger wrote an outlandish post claiming that Trump had the power to ignore an adverse Court decision. After the case was decided, administration mouthpieces took to The Wall Street Journal and The Washington Post to suggest that census questions were executive matters in which the Court had no jurisdiction to interfere.

In the end, Trump’s defiance failed to materialize, likely for logistical reasons—statutory deadlines required printing the questionnaires before the charade of a new justification could play out. Complicating the task was a botched attempt by Barr to replace the legal team that had argued the case to that point, which was rejected by one of the trial courts hearing the case. 

But the message, for those paying attention, was striking: Conservative Court or not, Trump, if displeased, might consider sweeping it aside. The prospect would have been enough to worry a sitting justice, since one truism every new justice absorbs is that the Court has no weapon but persuasion to deploy against a recalcitrant president. President Richard Nixon had floated the idea of defying the Court in United States v. Nixon, the case requiring him to turn over the incriminating White House tapes that led to his resignation, but he had backed off in the face of stiff political resistance. Franklin D. Roosevelt, as the Court considered a last-minute appeal by German spies sentenced to death by military tribunals, had sent word to the chief justice by back channel that he intended to execute the defendants regardless of what the Court decided—so the Court ended up rejecting the spies’ appeal. 

By 2019, the Supreme Court had gone through another shock. In June 2018, Justice Anthony Kennedy announced his retirement. The ensuing events would erode the Court’s neutrality to a stunning degree.

Kennedy had been the centerboard of a conservative majority, keeping it on a measured course when other members had seemed tempted to tack sharply into the wind. Kennedy had joined a three-justice plurality that refused to overturn Roe v. Wade in the 1991 Planned Parenthood v. Casey decision; he had also been the architect and author of the Court’s three major LGBTQ rights decisions between 1996 and 2015. Only two months earlier, in late April 2018,the New York Times editorial board had issued an extraordinary “open letter” to Kennedy under the headline “Please Stay, Justice Kennedy. America Needs You.”

Subsequent news reports revealed that Kennedy, in a meeting with Trump to inform the president of his retirement, had lobbied the chief executive personally to appoint his former law clerk and protégé, Brett Kavanaugh; Kavanaugh was duly nominated on July 9. Though justices and presidents had sometimes communicated on appointments, there was still something noteworthy about this departure from norms by the usually decorous Kennedy. He may in fact have been emboldened by the open campaign of persuasion directed at him in previous months by the White House counsel’s office under the direction of Donald McGahn, who had made remodeling the courts his major objective.

The Gorsuch nomination, the travel ban decision, and the Kennedy resignation, it soon developed, had been only light squalls compared to the storm that now engulfed the Court with the nomination of Kavanaugh.

Late in the confirmation process, a letter to Democratic Senator Dianne Feinstein had outlined charges by Christine Blasey Ford, a professor at Stanford, that, as a teenager, Kavanaugh had sexually assaulted her at a gathering. At Ford’s request, Feinstein kept the letter to herself. She took no steps to investigate until the letter leaked. The awkwardness of the timeline was magnified by Kavanaugh’s own performance before the committee. His response to the allegations was searingly combative. It contained overtly partisan references—perhaps the first of any such hearing in history—and at least inferential threats of partisan retaliation by Kavanaugh on the Court. Few viewers would forget Kavanaugh’s snarling face as he spat defiance at his Democratic critics: 

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups. This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade confident and good people of all political persuasions from serving our country. And as we all know, in the United States political system of the early 2000s, what goes around comes around.

The Senate’s confirmation vote on Kavanaugh took place on October 6, 2018, exactly a month before the midterm elections. Even before the 50–48 vote, Trump and the Republican Party had aggressively deployed Kavanaugh’s name and testimony for partisan purposes. Votes on Kavanaugh were explicitly linked to the nascent backlash against the #MeToo movement. Trump had begun to mock Ford at his rallies, asking Republican women to “Think of your son” and “Think of your husband” as potential victims of supposedly false allegations of assault. 

Immediately after the vote, Kavanaugh was sworn in. He then went to the White House, where Trump, with the full Supreme Court in attendance, blasted those who had opposed his nominee: “On behalf of our nation, I want to apologize to Brett and the entire Kavanaugh family for the terrible pain and suffering you have been forced to endure.” Trump then recognized Mitch McConnell and thanked every Republican member of the Judiciary Committee by name. 

Kavanaugh told the group, “The Supreme Court is an institution of law. It is not a partisan or political institution. The justices do not sit on opposite sides of an aisle. We do not caucus in separate rooms.” The setting and atmosphere rendered this assurance ambiguous at best.

This marked the second election cycle in a row in which specific Supreme Court nominees had been by implication on the ballot. Though previous presidents had, in a campaign context, praised their judicial nominees (Gerald Ford openly boasted of the quality of his nominee, John Paul Stevens), this was something new. Kavanaugh was held up not as an example of judicial excellence but as a rebuke and punishment to the internal enemies of the sitting president and his party—as a new superweapon in the culture wars. It was an impression that Kavanaugh’s grotesque performance in confirmation had helped create, and that was reinforced when he became the second sitting justice to make a campaign-style appearance with McConnell in his home state. (Kavanaugh’s visit came only eight months before McConnell faced reelection.) 

A specific judicial name became an issue in the 2020 election cycle as well. Justice Ruth Bader Ginsburg, who had battled multiple cancers during her final decade on the Court, died in her Watergate apartment on September 18, 2020, 46 days before the election. Within eight days of her death, Trump had nominated Amy Coney Barrett, a former Notre Dame professor who had been named to the bench only three years earlier. Barrett was a deeply conservative Catholic who made no secret that she was strongly against abortion and Roe v. Wade. In 2016, of course, McConnell had said that a president in the last year of his term should not fill a February Supreme Court vacancy; in 2020, McConnell discarded that rule with the equivalent of a cynical shrug. When Barrett’s nomination was announced on September 26, early presidential voting had already begun in parts of the country. McConnell shoved the confirmation through the Senate on October 26—just eight days before the election.

Trump made no secret of his expectation that Barrett, once confirmed, would help secure his own reelection: “We need nine justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam,” Trump said on September 22, referring to his claim that mail-in ballots were fraudulent. “It’s a hoax. Everybody knows that. And the Democrats know it better than anybody else. So you’re going to need nine justices up there. I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots.” 

This was the first time in history that a president had advanced a specific Supreme Court nominee on the grounds that their vote would ensure that he remained in office.

McConnell later assessed the political advantages of his manipulation of the Supreme Court issue: “In terms of the politics of it, I think [the issue of Supreme Court seats] was helpful for us in 2016 and 2018, and it is clearly, I think, a plus in 2020 as well. So, good for the country and good for us politically as well.”

About a year after the election, Barrett became the last of the three new justices to make a campaign-style appearance with her senatorial patron, Mitch McConnell. After being introduced by McConnell on a stage at the McConnell Center at the University of Louisville in September 2021, Barrett told the crowd, “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks.” This odd statement ranks beside “I did not have sexual relations with that woman” as among the least convincing statements ever uttered by an American public figure.

The makeup of the Court had, meanwhile, become an important electoral issue for Democrats as well as Republicans. In March 2019, the presidential candidate Pete Buttigieg announced his own “court reform” plan, largely taken from a proposal published by Daniel Epps (disclosure: a family member) and Ganesh Sitaraman in The Yale Law Journal. From that moment on, the issue became an inescapable part of the 2020 presidential campaign. From the end of the Kavanaugh confirmation forward, Democratic progressives had repeatedly urged that, if successful in taking over Congress in 2020, Democrats should enact term limits, or expand the Court to counterbalance Trump’s appointees. 

Trump and the GOP campaign then began to accuse Biden of planning to “pack the Court.” In their chaotic first presidential debate, Trump repeatedly demanded that Biden release a list of nominees, as if such a list were a standard part of presidential campaigns rather than a shredding of centuries-old norms.

Biden largely ignored the “pack the Court” taunts. But he injected Court appointments into the debate as well. On February 25, 2020, Biden, in a primary candidate debate in South Carolina, promised, “I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.” Accounts of the campaign agree that the promise was in response to a specific request from Representative James Clyburn, the most influential Democrat in South Carolina, and that Clyburn’s endorsement salvaged a Biden campaign that had seemed to be floundering. 

The promise pushed up against, though did not quite break, pre-Trump norms. In 1980, candidate Ronald Reagan had promised to nominate a woman to the Court—a promise that helped him overcome a looming “gender gap” among women voters. Trump’s first list of nominees, in May 2016, had been all white—functionally, the same as saying, “I will name a white person to the Court.” His second list, in the fall of 2016, included one male Black judge, though no Black woman. Again, this was a promise to not name a Black woman—but it was made with the obligatory hypocrisy politicians employ about racial promises, especially those that favor the white majority.

Nonetheless, Biden’s was the first announcement of an explicit racial qualification for a potential nomination, and was jarring to some observers on both sides. What is striking, however, is how pale a compromise of norms it seems in the context of the years since 2016. When in early 2022 Biden fulfilled the promise by nominating Judge Ketanji Brown Jackson to fill the seat Stephen Breyer was leaving, Republicans attempted to make an issue of it, disparaging her as unqualified because of the “Black woman” pledge; that attack got little traction with the public, so in the end they took to accusing her of coddling pedophiles. Nonetheless, she was confirmed on April 7, 2022.

During the campaign, the accusations of a “court-packing” plan proved so bothersome to Biden that on October 22—four days before Barrett was confirmed—he promised that, if elected, he would name a commission to study ways of reforming the Court. This was a classic politician’s method of defusing an issue he didn’t want to address; the eventual commission was made up of largely reliable centrist figures and academic insiders, and its eventual report, to no one’s surprise, recommended no changes.

After the election, in late 2020, Trump attempted to enlist “his” Court in his effort to remain in office. Insider accounts suggest that he expected the Court to hear a case that would allow the conservative majority to throw out Joe Biden’s victory. Most of the post-election challenges, however, could not, under the rules of federal jurisdiction, go directly to the Supreme Court—and the lower courts that heard these cases threw out all but one of the dozens of challenges brought by the national Trump campaign and local Republican groups. So uniform and categorical was the rejection that the Supreme Court prudently chose not to get involved.

However, on December 7—only a week before the electors were to cast their votes—Texas Attorney General Ken Paxton fulfilled Trump’s wishes by filing an original jurisdiction complaint in the high court on behalf of Texas against the states of Pennsylvania, Georgia, Michigan, and Wisconsin. (Lawsuits between states are among the few kinds of cases that go straight to the Supreme Court.) Paxton contended that the swing states’ executive officials and courts had violated the U.S. Constitution by interpreting their state law and constitutions to limit the authority of the state legislature over presidential elections. He also made the outlandish claim that Texas had a “judicially cognizable interest in the manner in which another State conducts its elections”—that is, that the Lone Star State was somehow injured, in constitutional terms, because swing state voters had freely chosen to award their states’ electors to a candidate opposed by Texas voters. Paxton ended with the ridiculous request that, without finding the election results inaccurate, the Court should nonetheless set aside the vote in each defendant state and order the legislature to choose new electors.

This lawsuit was a bad joke, surely understood as such even by Paxton, and by Senator Ted Cruz, who volunteered his services to argue the case if it came before the Court. Trump, however, clearly regarded the lawsuit as the moment he had remade the Court to meet. At the White House he entertained several red-state attorneys general who had joined Paxton’s lawsuit, and he ensured that the justices knew what was expected of them by tweeting, “The Supreme Court has a chance to save our Country from the greatest Election abuse in the history of the United States. 78% of the people feel (know!) the Election was RIGGED.” 

On December 11, the Court dismissed Texas’s motion in an unsigned order that mildly stated, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” The next day, Trump angrily tweeted, “The Supreme Court Really Let Us Down. No Wisdom, No Courage!” Even after leaving office, he has continued to insist that the Court betrayed him and the public. In a February 2021 speech to the Conservative Political Action Conference, he said,

They didn’t have the courage, the Supreme Court, they didn’t have the courage to act, but instead used process and lack of standing. I was told the president of the United States has no standing. It’s my election, it’s your election. We have no standing. We had almost 25 … if you think of it … we had almost 20 states go into the Supreme Court so that we didn’t have a standing problem. They rejected it. They rejected it. They should be ashamed of themselves for what they’ve done to our country. They didn’t have the guts or the courage to make the right decision. They didn’t want to talk about it. We had the case led by the great state of Texas. Eighteen states went in. “You don’t have standing.” Let’s not talk about it. They didn’t have the guts to do what should be done.

On January 6, 2021, the joint session of Congress to count electoral votes was nearly blocked by a bloody mob attack on the Capitol building by pro-Trump rioters brandishing guns, clubs, and nooses. Not for more than a year would the country learn that Virginia Thomas, the spouse of Justice Clarence Thomas, had been among those attending the “Stop the Steal” rally that turned into the violent attempted coup, and that she had repeatedly urged White House officials to block Biden’s accession to office. The proof was found in texts subpoenaed by the House special committee investigating the January 6 riot. Trump, by then out of office, asked the Supreme Court to block disclosure of the texts, but the justices voted 8–1 to require it. The sole dissenting justice was Clarence Thomas.

Prominent Democrats had begun as early as 2019 to warn in stark terms that the Court was headed for trouble. In August, Senator Sheldon Whitehouse had filed an amicus brief in a gun rights case joined by four other Democratic senators that ended with this stark warning to the justices: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

In early 2020, Senator Majority Leader Chuck Schumer, at an abortion rights protest in front of the Court, said, “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Schumer quickly apologized for his choice of words, which he said were about a political price—but the violence of the rhetoric was, by historical standards, startling. 

A year later, on March 10, 2021, Whitehouse, a frequent critic of the Court’s ethical rules, presided over a Senate Judiciary hearing entitled “What’s Wrong With the Supreme Court?” The hearing laid out the progressive critique that the Court was not only extreme but was also influenced improperly by “dark money” committees and advocacy groups like the Federalist Society. 

The unease plainly affected the justices as well. On April 6, Justice Stephen Breyer delivered the annual Scalia Lecture at Harvard Law School, in which he warned against the “perils of politics” as a threat to the Court’s legitimacy. Questions about that legitimacy, he suggested, were the fault of the news media, which could prevent further damage to the Court by not using terms like liberal and conservative to describe either justices or their decisions. There was something plaintive, indeed almost pathetic, about Breyer’s attempt to justify the new Court in terms of Courts of the past that had ruled against racial segregation. The lecture, and the subsequent small book based on it, seems in retrospect to have been aimed at his new colleagues rather than at the public. A few months later, Breyer announced his impending retirement; Biden fulfilled his campaign pledge by naming Ketanji Brown Jackson, who had served as a district judge and a judge of the Court of Appeals, to replace him.

The unease deepened when, on September 1, the Court allowed Texas to put into effect a radical new law designed to block all abortions after six weeks of pregnancy. Though the decision came in a short shadow docket order, it implied to most observers that at least five justices were prepared to overrule Roe v. Wade. 

On September 30, Justice Samuel Alito appeared at Notre Dame Law School, where he echoed, in more aggressive form, the claim that it was the media, not the Court, that was out of step. He particularly attacked coverage of the Court’s role in the Texas case, singling out an article by the Atlantic magazine staff writer Adam Serwer for what Alito called a “false and inflammatory claim that we nullified Roe v. Wade … We did no such thing, and we said that expressly in our order.” Alito’s outrage has not aged well; on May 2, 2022, Politico published a leaked draft opinion in the abortion case, Dobbs v. Jackson Women’s Health Organization. The Court was, in fact, preparing to nullify Roe—and Alito wrote the opinion. 

Within days of the Politico leak, the Court was surrounded by high metal fences to protect against demonstrations. The chief and most of the justices adopted a tight-lipped approach to the story, but Thomas, in the mood to lecture the nation on ethics, delivered at a conservative meeting in Texas a eulogy for the old days of the Court. “What happened at the Court is tremendously bad,” he said. “I wonder how long we’re going to have these institutions at the rate we’re undermining them.” On May 3, Roberts announced an internal investigation into the leak, to be conducted by the marshal of the Court. As of this writing, no report has been released to the public.

In June, the Court announced formal decisions in its most contentious cases. The shock of the Dobbs draft, if anything, grew. The other major decisions—on gun rights, environmental law, Indian tribal sovereignty, and public displays of religion—were written in terms so broad as to seem an open invitation for conservative advocacy groups seeking to roll back existing precedent in a wide variety of areas. In addition, the opinions proclaimed both the Constitution and the Court to be indifferent to the practical consequences of the Court’s decisions. Well before Dobbs was even argued, it was clear that gutting abortion rights would cause chaos and suffering—the confusion and medical tragedy in Texas had been prominent in the news since the Texas law had taken effect the previous September. By June 2022, it was clear that neither government officials, medical professionals and hospitals, nor pregnant women themselves were prepared for the changes a wholesale rejection of Roe would make in obstetric care, maternal health, and, indeed, maternal survival. 

The Court’s climate change decision, West Virginia v. EPA, came at the outset of one of the hottest summers on record, with a heat wave claiming lives across most of the country, terrifying wildfires in the West, and drenching rain and flooding in parts of the Midwest. And it further propounded doctrines that promised to cripple the government’s ability to regulate a wide variety of national problems—under a “major questions doctrine” that seemed to suggest that the more important and pressing a problem was, the less power the Court would give the government to address it. 

And the gun rights case, New York State Rifle & Pistol Association v. Bruen, blasted a hole in gun licensing restrictions only weeks after a gunman killed 21 people, 19 of them children, at Robb Elementary School in Uvalde, Texas.

In each case, the new majority piously disclaimed any concern for real-world consequences. The Court, the majority blandly explained, had no role in assessing the results of its jurisprudence; all that mattered was an abstract doctrine like “history and tradition” or the major questions doctrine. This attitude was best summed up by Alito’s dismissal, in Dobbs, of the slightest interest in the practical effect of the reversal of Roe on women’s lives, saying it was “an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.”

The full Dobbs opinion had been foreshadowed by the May leak—but no one had seen the separate opinions until the official opinion was released on June 24. The Court’s full decision included a separate opinion by Thomas, in which he explicitly called on the Court to overturn the seminal cases of Griswold v. Connecticut (right to contraceptive use), Lawrence v. Texas (consensual sex between same-sex adults), and Obergefell v. Hodges (same-sex marriage). Alito’s opinion had promised that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But Thomas’s concurrence made clear that Alito’s assurances had no legal effect, and were probably not even sincerely meant when made, but were instead (like Alito’s earlier claim that the Texas decision did not “nullify” Roe) contemptuous gaslighting of the public. 

By June 30, the last day of the 2021–22 term, the Court’s transformation was complete. It had four new justices (Gorsuch, Kavanaugh, Barrett, and Jackson); a new set of procedures (the hypertrophied shadow docket, with its foreshortened, and largely opaque, approach to contentious issues); a new doctrine of stare decisis (precedent is entitled to respect unless five justices consider it “egregiously wrong”); a new relationship toward both state governments (frequent filers and frequent winners in conservative-agenda cases) and Congress (extraordinary deference to congressional inaction and little or no regard for congressional statutes); and a disdainful attitude toward the public it nominally serves. 

The end of the term promised little respite from the restless activism of the new majority. On the last day, the Court granted review in a North Carolina case that would give the conservative majority a chance to begin to establish the principle Texas had tried to use to overturn the 2020 election. This is the conservative claim, relatively recent in origin and with little history or doctrine to support it, that state courts and election officials may not play any role in setting voting procedures for congressional or presidential elections—that only the “independent state legislatures” can regulate, supervise, and eventually decide these elections. Acceptance of this theory in its full extent would wipe out a large number of voting rights protections erected by state constitutions and court decisions, and in the worst case set the stage for a future case approving the radical change Trump and his supporters had urged—a simple decision by a state legislature to overrule the state’s voters and award electors to the candidate of the legislators’ choice. A second granted case presents a chance to cut back drastically on the remaining protections of the Voting Rights Act of 1965. A third set of cases affords the Court the chance to achieve a long-held conservative aim of eliminating “affirmative action” programs in college admissions. 

Public opinion polls showed the Court—by tradition the most popular branch of the federal government—gaining record-low shares of public approval. Democratic politicians found that criticism of Dobbs produced a powerful response on the campaign trail. There was also a new atmosphere within the Court, with personal and ideological divisions sharper and respect for the institution weaker. During the run-up to the 2022–23 term, Roberts took a turn promulgating the “It’s the public’s fault” explanation for the Court’s unpopularity: “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the Court,” he told an audience at the Tenth Circuit’s biennial judicial conference on September 9. Three days later, Justice Elena Kagan issued what seemed like a pointed response in a speech at a New York synagogue: “Judges create legitimacy problems for themselves … when they instead stray into places where it looks like they’re an extension of the political process or where they are imposing their own personal preferences.” On September 27, Alito issued a fiery rebuke, implicitly accusing Kagan of an ethical breach: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the Court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

The public rancor; the partisan lineup of the justices; the aggressive tone of the majority’s opinions; the leaks that surrounded Dobbs; the freedom with which the justices speak out in nonjudicial settings; the willingness of the conservative justices to lend themselves to seemingly partisan organizations, events, causes, and even individual politicians; the ostentatious disregard by Clarence Thomas of even the most basic norms of impartiality—all of these resemble nothing so much as the workings of a legislative branch of government, charged with setting the policy, social, and even religious agenda for the nation. Our Supreme Court is now something akin to the Guardian Council that ensures religious conformity within the “democratic” government of the Islamic Republic of Iran. 

This Court is not what we have recognized for 75 years as a legal institution, and the role it seeks to play is not the one Americans have accepted—sometimes reluctantly—during that time. Like the Taney Court in 1857, like the pre–New Deal Court in the 1930s, it seems to be grasping for unchallenged control of American politics and government. And as in 1857 and 1937, the Court’s power grab presents a destabilizing challenge to America’s political institutions, and to the American people.

The end of this crisis is hard to foresee, and the proper response by the people is difficult to be sure of. But one thing is clear: Democratic forces in our society have no choice but to challenge the Court’s pretensions to omniscience and omnipotence. For all its roaring and bluster, the post-Trump Court majority is six unelected judges cowering behind a curtain, where they demand obeisance but refuse to make the slightest gesture toward earning it.

Resistance to a lawless Court is not lawlessness itself; it can be adherence, and respect, for the law against which the Court has sinned. After the Taney Court’s power play in the Dred Scott decision, Abraham Lincoln was elected president, in part because of a backlash to the Court’s embrace of slavery. In his first inaugural address, Lincoln told the nation that to resist and challenge the Court was not the same thing as challenging the rule of law itself: 

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government … At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

There is little evidence in our politics or culture that the public is willing to surrender its rights to Clarence Thomas and Samuel Alito—at least not without a fight. The future of this Court will be settled, in large part, by the response of the voters. As the early-20th-century humorist Finley Peter Dunne wrote, the Supreme Court follows the election returns. If the assault on Roe, for example, does not damage the Republican Party, then its partisan judges will strip more rights. If Republican candidates suffer, however, those judges may hesitate. If elected Democratic leaders make a feckless response to judicial aggression, the Court will grab more authority. If they respond strongly, the Court majority may hesitate. If the voters prize their rights, then they will preserve them. If not, then they will lose them. 

Our better angels will not rescue the nation. We the people must.

The post The Court’s Third Great Crisis appeared first on Washington Monthly.

Growing up in the Lyon Park neighborhood of Arlington, Virginia, I knew my house was the place to be. It was conveniently located between Clarendon, our shopping center, and my middle school, which meant that everything I could desire was a walk or a short bike ride away. Across the street from my house was a sledding hill so popular that you had to show up early on snow days to get in some good runs. I absolutely loved the place. My parents became first-time homeowners in 1998 when they bought the house, a four-bedroom, blue-green colonial about half a mile from the Clarendon Metro stop. I was born a few months later in Fairfax County, because Arlington’s hospital wouldn’t take my parents’ insurance (a fact I resent with Leslie Knope-ian fervor), but other than that slight snafu, I grew up a proud resident.

I attended elementary and middle schools ranked among Virginia’s best, with a financially, racially, and ethnically diverse student body. At my middle school’s International Night, where students would bring food that represented their culture, the entire gym would be filled with the enticing smell of pupusas, samosas, and injera. After school, my friends and I would walk or ride our bikes into downtown Clarendon—one of the biggest downtown areas and Metro corridors—to peruse our favorite consignment store, have snowball fights at the park, and get frozen yogurt. (This was, after all, the early 2010s!) It didn’t matter that we were too young to drive. Without having to rely on a ride, I could go to all of my friends’ houses, to parks, stores, and restaurants, and even to downtown Washington, D.C., hopping on the Metro. If I hadn’t been a gangly preteen who thought it was acceptable to wear water sandals to school, my memories would be truly idyllic.

Arlington was an amazing place to grow up, largely because it has rejected the rigid and exclusive aesthetics that give suburbs their notoriety. Its embrace of mixed densities lent it the walkability and diversity that fostered an amazing childhood. Once a sleepy backwater, Arlington County adopted pro-development policies in the years after World War II. As the county’s population exploded along with the size of the federal government, zoning ordinances changed to permit multi-family housing along streetcar corridors and in the areas around federally built apartment villages for defense employees. Arlington’s character as a suburban outlier especially took off after the construction of the D.C. Metro system, during which county officials successfully advocated for the building of two Metro lines to run through its commercial corridors, rather than expand highways. As part of those negotiations, the county struck what housing organizers refer to as a “grand compromise”—permitting high-rise development around the new transit corridors and zoning the areas beyond transit centers, sometimes as close in as a quarter mile, for single families. It’s the perfect example of an anti-sprawl strategy that urban planners refer to as “smart growth.” (Arlington’s Ballston neighborhood, a downtown area only a mile from my childhood home, is even pictured on the term’s Wikipedia page.) 

I may only be in my 20s, but the county has changed significantly over my lifetime. As a neighbor to D.C. and the home of the Pentagon, Arlington experienced a 20th-century boom that brought with it a transplant population of mostly highly educated federal employees. As the military-industrial complex grew, so did the number of defense contractors stationed in Arlington, including divisions of Boeing, BAE Systems, and a number of specialized cybersecurity and military technology firms. When my parents bought their house in 1998, new homes were still affordable for young couples and families. The neighborhood was mostly populated by retirees from the military or federal agencies. As I was growing up, most of our neighbors were federal employees, consultants, or in the nonprofit sector, with new immigrant families settling in the neighborhoods to the south, where more multifamily complexes are permitted. But in recent years, the growth has gone completely gangbusters. In 2017, Nestlé made Arlington its corporate headquarters; in late 2018, Amazon chose the county as the site of its HQ2. It’s easy to see why: Arlington is now the seventh-wealthiest county in the United States. All of this growth can be seen in the corporate skyscrapers going up in Rosslyn and Ballston, the staid restaurant mainstays replaced by chains, and, above all, the houses getting bigger and more expensive. Just take my parents—they sold their first home in 2016 for more than double its 1998 price. Today, just six years later, its value has gone up another estimated 27 percent. The people moving into our old neighborhood increasingly work in the private sector, and build new, larger houses on the existing lots.

Lingering over the entire situation is the specter of Amazon—literally. In addition to adding a few towers to the landscape, the retail giant is creating a 10.4-acre mega-campus dubbed “PenPlace,” a feasting ground for the architects, developers, and engineers tasked with implementing the company’s grandiose vision. Amazon, for its part, has pledged to contribute $50 million to Arlington’s affordable housing fund—an attempt to offset the displacement from 25,000 new workers earning an average of $150,000. The gesture is certainly welcome, though it most likely won’t prevent a shock to the system in a county already struggling under a housing crisis.

These days, home sales and sizes are constant neighborhood chatter. Every time I visit my parents and walk my dog, I can see the telltale Tyvek building paper, onsite porta-potties, and increasingly enormous frames that indicate a teardown—a large, pricey new house, or even a McMansion, replacing a modest-sized home. The conversations among neighbors always arrive at the same question: How will any of us who were raised in Arlington ever be able to afford it?

Arlington’s housing market—and the fracas over how to solve it—illustrates one part of America’s broader housing shortage.

In a 2021 report, Freddie Mac estimated that the nation has a housing deficit of 3.8 million units. A March report from the Pew Research Center revealed just how tight the market has become; the median U.S. home sale price rose to $440,300 in the second quarter of 2022, up 84 percent from 10 years ago, and 46 percent of renters are now classified as “cost burdened,” meaning they spend more than 30 percent of their income on housing. 

There’s enormous demand, and limited supply. The shortage is exacerbating homelessness. It’s keeping home-ownership—among the best ways to build generational wealth—unattainable for renters. And it’s deepening inequality between owners, who see their properties continuing to appreciate at historic rates, and those who don’t own. 

So why can’t we increase our supply? Put simply, we’ve outlawed density.

Exclusionary zoning has limited where and what kinds of housing can be built and artificially restricted new density in the majority of neighborhoods. Created explicitly to maintain segregation in cities with diverse populations, and then morphing into legally enforceable class-based discrimination, exclusionary zoning concentrates high home values, good public schools, and well-funded amenities in higher-income neighborhoods. In areas zoned for single families, the only type of housing stock permitted is detached homes, a limitation that suppresses density and diversity. And these zoning restrictions come with a formidable army of NIMBYs, who are dead set on ensuring that any new development is “not in my backyard” and whose weapons include plenty of time to spend at city meetings, environmental lawsuits, and an ideological fervor against anything that may change the character of the neighborhood—be it an alley, a condo, or a person of another income level or race.

Meanwhile, neighborhoods have changed. Houses have gotten bigger. McMansions have entered the scene. And for many of the very NIMBYs who bought their houses when they were more affordable, it’s their own children or grandchildren who are now priced out, because the neighborhood has, above all, gotten more expensive. To close the gap, we need more dwellings. And to build those dwellings, we must permit them in places where zoning restrictions have outlawed them.

Arlington is at the forefront of this problem. It is one of the smallest counties in the United States and faces the challenge of housing nearly 240,000 people—with Amazon HQ2 employees on the way—on 26 square miles of land. The county touts itself as a bastion of inclusivity. In several respects, it is. Thus far, there are no abortion bans; Arlington routinely ranks well on lists of LGBTQ-friendly places to live; its schools have antidiscrimination and antiharassment policies. But all of the liberal yard signs in the world (“In This House, We Believe …”) won’t matter if Arlington is not affordable enough to actually include those it purports to welcome. 

And that’s where a county proposal to build missing middle housing could make a difference.

Typically, our housing stock presents a binary choice: house or apartment. What that leaves out is what urbanists call the “missing middle”—duplexes, triplexes, and other multiplexes, along with townhouses, condos, accessory dwelling units, courtyard housing, and even cottage clusters. This type of housing was much more common in the 19th and early 20th centuries, and still exists in cities like Boston and D.C., which are known for their row houses and English basements. Providing more space than an apartment, but less costly than a house, missing middle housing injects affordability into neighborhoods that middle-class people, young families, and older people are typically priced out of.

In most places, these types of homes have been illegal to build since the 1940s. In Arlington itself, a few neighborhoods do have this gentle density, with multiplexes grandfathered into neighborhoods where they can no longer be built. But there’s a burgeoning movement, especially in smaller cities and more mixed-use suburbs, to once again permit these options. In 2020, the city council in Portland, Oregon, passed the Residential Infill Project, permitting the construction of alternative dwelling units (think “granny flats”) up to four-plexes in what were previously single-family neighborhoods. In just 10 months since the ordinance went into effect, 511 new units have been permitted. Several cities in the Pacific Northwest, including Spokane, Washington, and Eugene, Oregon, and others, including Grand Rapids, Michigan, and Durham, North Carolina, have up-zoned to allow for some missing middle housing. 

This year, Arlington released the Missing Middle Housing Draft Framework, based on a multiyear study by the county concluding that Arlington was becoming unaffordable and that residents were interested in a broader range of housing options. In December 2021, the Northern Virginia Association of Realtors reported that the average single-family detached home in the county sold for almost $1.26 million. That price had risen 17 percent in just one year. Sale prices had appreciated nearly 70 percent in 10 years. 

To solve the problem, the study recommended that land that’s exclusively zoned for single-family detached housing—or 79 percent of the county’s residential land—be zoned to permit duplexes, triplexes, and buildings up to eightplexes, along with townhouses, while adhering to existing design and height standards. The county estimated that the plan’s impact would be small at first. The study projects new development on 20 lots per year, bringing 150 “new neighbors” and adding nine to 13 new students to the school system per year. This missing middle housing is expected to help households earning between $108,000 and $200,000 who need smaller housing options, including young families, older Arlingtonians, people of color, and people with disabilities. 

The draft framework lays out how expanding housing typology for more efficient land use will improve equity in the county. The study found that Arlington’s zoning code—such as eliminating the construction of row houses, where Black residents lived throughout the D.C. metro area,  in 1938—has explicitly created segregation and driven Black residents out of the county. The study’s authors called the proposal a first step to “undo the restrictive zoning that led to racial disparities in housing and wealth-building opportunities for the past 90 years.” Initially, the change would be relatively small, a drop in the bucket against decades of exclusion. But as housing advocates like to repeat, the best time to build new housing was 50 years ago. The second-best time is now.

But try telling that to the NIMBYs.

At a county board meeting to discuss the issue in June, the plan’s supporters, including the group YIMBYs of Northern Virginia, sat on one side of the room, while their opponents, Arlingtonians for Our Sustainable Future—the NIMBYs—held court on the other. A YIMBY speaker (“yes in my backyard”) rose to declare that adding greater housing choice would bolster Arlington’s diversity and affordability. And then the NIMBYs went berserk. 

Arlingtonians for Our Sustainable Future (which sounds pleasant enough; who could be against sustainability?) put up flyers around the county saying that the draft framework would overcrowd schools, increase traffic, and demolish affordable housing. Adding more middle-class housing choices, its leaders said, represented the county’s “single-minded pursuit of revenue” and an abandonment of “the Arlington way.” At the county board meeting, typically orderly, the public comment period exploded with NIMBY boos, eliciting incredulity from board members.

“We say no more densification without representation!” ASF member Anne Bodine declared. The NIMBYs were chastised by board members for shouting out of turn, and then booed the county’s leadership for correcting them. Once they realized that the YIMBYs had picked the side of the room where their signs could be seen on the county’s streaming camera, one woman from the NIMBY side got up, kneeled in the aisle, and held her sign in front of a YIMBY one, tracking his position like a cornerback and then adjusting her sign—“The Arlington Way Has … Gone Astray”—to block his.

But what is the “Arlington way”? A typical rule of thumb for prospective homeowners is to not buy a home that’s worth three times more than the family’s gross annual income. Arlington’s median household income is $122,604. The average home sale price in August 2022 was $769,565. 

“It would be hard to look at the Arlington market and think, ‘Does this work for anyone except the very wealthy?’ ” Jane Green, the president of YIMBYs of Northern Virginia, told me. “It’s not a good system.”

Those for whom the system works—homeowners—typically have the loudest voices. As part of the second stage of its housing study, Arlington’s government solicited feedback from residents. The results were telling—while 77 percent of renter respondents liked the plan as is, 75 percent of homeowners asked the county to narrow the amount of proposed new housing types permitted in the framework. The political power of the homeowner class is clear. Though the county is majority-renter, homeowners made up nearly 84 percent of the survey’s respondents. The county is already suggesting options that would walk back the original proposal, such as bumping the minimum parking requirement for missing middle housing up to one parking space per unit from a half of a space, which makes triplexes or quadplexes more unlikely, or limiting the number of single-family neighborhoods in which missing middle housing would be permitted.

And while YIMBY groups proved powerful in Portland and have put together successful coalitions in college towns such as Ann Arbor, Michigan, and Gainesville, Florida, Arlington, with its significant wealthy, politically active, and easily mobilized homeowner population, could prove to be a different beast. (If the county board makes decisions based on how many flyers each side is able to put up, then the draft framework is certainly doomed.) Members of Arlingtonians for Our Sustainable Future have been making the rounds of neighborhood civic organizations and flooding county board meetings with testimony, telling leaders that adding some duplexes and condos is tantamount to turning “our urban village [in]to a paved metropolis.”

Homesickness is an all-encompassing emotion, a lingering sense never quite resolved. Singers express nostalgia for the places they’ve long since left behind; literary characters come to the realization that it’s not their hometown that has changed but, rather, they themselves who have evolved. 

The immutability of home can certainly be comforting. Every time I returned from college and hung out with my friends in D.C., I would drive home late at night over Georgetown’s Key Bridge into Rosslyn, just me and the skyscrapers alone in the midnight secrets we shared, as if the city were welcoming me back. When I walk my dog into Clarendon, I recall window shopping with my middle school friends, the memories greeting me like an old companion. In the glow of neighborhood holiday parties—the same ones I’ve been going to forever—it’s a comfort to know that though I’ve moved away many times, I can, in fact, go home again, and relax in the ease of familiarity. It’s the seriousness with which we take youth recreational basketball rivalries, knowing phrases like “Superman Hill” and “DMV,” and cheering the success of restaurants like District Taco, which I first went to when it was a food truck but which now has nearly 15 locations.

That’s my Arlington. But someone who moved here 40 years ago would have no such association with Rosslyn’s skyscrapers or Clarendon’s character. Perhaps they have their own memories of the neighborhoods that built them; perhaps their neighbors have moved away; maybe they wanted to downsize and found that the middle-class Arlington they arrived in has changed irreparably. 

Places change and fluctuate with their economic fortunes, their policies, and the passage of time. That’s inevitable—despite the constant refrains from someone who arrived 10 years before you claiming that you can’t be a real “Your City Here”–onian unless you went to this bar or that restaurant or experienced some bygone event. Cities cannot be preserved in amber—and, given their legacies of exclusion, they shouldn’t. But places do have a say in how they change, which is why debates over housing boil down to a fundamental question: To whom does a city or town belong?

NIMBYs would tell you it belongs to the existing homeowners—even in places like Arlington, where the majority of residents are renters—and that change is inherently negative. But a place’s existence is contingent on its ability to evolve, and to meet the needs of tomorrow’s residents as well as today’s. Arlington will change. It will either become more dense, climate resilient, and affordable, or, by maintaining the status quo, it will become increasingly exclusive. 

My Arlington belongs to the public school teachers who first sparked my interest in journalism. It belongs to those who worked at favorite restaurants that moved away or no longer exist, like Hunan Number One, now a West Coast–themed seafood restaurant from a big D.C. restaurant group, or Tandoori Nights, an Indian spot that closed and has not been replaced. I hope it can belong to me.

Everyone deserves to grow up in a place like Arlington—walkable, transit oriented, full of interesting restaurants and stores, diverse, and with great schools and nice parks. A wonderful place to learn to ride a bike, to develop an interest, and to make lifelong friends. But I know that given my current career trajectory, becoming a homeowner in Arlington is unlikely. If the city had been as expensive when my parents were a young couple looking in the late 1990s, I would have been raised in a farther-out suburb like Woodbridge or Lorton instead.

At the June county board meeting, before the boos began raining down, Wells Harrell, a member of YIMBYs of Northern Virginia, expressed my feelings on the subject succinctly.

“I love my neighborhood,” he said. “And sometimes, when you love something, you just want to share it with others.”  

The post Why I Can’t Afford to Live Where I Grew Up appeared first on Washington Monthly.

Electric vehicle owners face a gnawing fear every time they take a long road trip. Will they run out of juice before finding the next charging station? That fear has a name: range anxiety.

During my first long trip in an EV earlier this year, range anxiety was a real concern. While I found charging stations using PlugShare, a trip-planning smartphone app, my new car came dangerously close to running out of power before I reached one in the parking garage at a fancy shopping mall, less than a mile off the interstate. My wife and I enjoyed a relaxing meal at the food court while the charger took 40 minutes to refill the car’s battery.

But I had a new worry as I pulled away from the electron pump. The roadside charging station, run by the for-profit company EVgo, charged nearly three times the price I pay for electricity at home. During two charging sessions (coming and going), the station charged an average of 45 cents per kilowatt hour in addition to the $5 monthly fee I had to pay for their “low cost” plan. The average residential rate for electricity in the U.S. is under 14 cents per kilowatt hour. Compared to $4.50 per gallon for gasoline, my EPA-rated 112 MPG-equivalent EV was getting about 40 miles per gallon on the road, significantly less than the hybrid I had just traded in.

Unless that price comes down significantly, the U.S. will have a difficult time meeting the Biden administration’s goal of EVs reaching 50 percent of vehicle sales by 2030. The recently enacted Infrastructure Investment and Jobs Act and the Inflation Reduction Act contain tens of billions of dollars in new incentives to help people buy EVs. It established a major program to build a network of charging stations across the U.S. and plans to invest a substantial share of the money in disadvantaged neighborhoods. The auto industry is betting heavily on a rapid shift toward EV adoption. Every major car company is building new assembly and battery plants.

But will people buy EVs if the price per mile at the electron pump is no different than what they pay at the gasoline pump now? Tens of millions of American households will not have the chance to charge at home, where electricity prices allow owners of energy-efficient EVs to shave two-thirds of the cost off their daily commute. They will be dependent on the private operators of the new charging stations.

Deploying EVs quickly and broadly is mandatory if we’re to succeed in slowing global warming. It will establish the U.S. as the leading competitor in the emerging global EV manufacturing industry, which China now dominates. But the key to achieving those laudatory goals is ensuring that the pocketbooks of middle- and lower-income Americans are taken into account as we make the switch.

Right now, the emerging policy framework is ignoring price. But there’s still time to change course—by encouraging small businesses, nonprofits, and local governments to compete with national chains in the EV charging station market, and by directing state utility commissions to establish rate structures that lower prices at the electron pump.

The people without an at-home charging option will include those without off-street parking; those who live in homes without garages or who can’t afford to upgrade their homes to accommodate the 240-volt line needed for at-home charging; those who live in buildings where landlords or condo associations won’t or can’t afford to install the necessary infrastructure; and those whose employers don’t set up workplace charging stations. This group, disproportionately poor and working class, may decide to leave the lower-priced EV models that will soon be rolling off assembly lines sitting on dealer lots. Why switch when the price of the daily commute or around-town travel stays the same?

“If we want to expand access to EVs to folks with lower incomes, price really matters,” John Howat, a senior policy analyst for the National Consumer Law Center, told me. “Whether it’s through state attorneys general or some other regulatory entity, it is appropriate to ensure that the price of electricity is affordable for drivers and the charging companies don’t realize a windfall profit.”

Early next year, state highway departments will begin doling out $5 billion in federal construction grants to finance up to 80 percent of the cost of building new fast-charging stations along the nation’s interstates and other major highways. Another $2.5 billion is available for grants to build stations away from these major corridors, with a special emphasis on disadvantaged neighborhoods and rural areas.

The impetus for the initial program is to eliminate the range anxiety on long-distance trips that inhibits many would-be EV buyers. There are only 6,000 fast-charging stations in the U.S. today. The federal program is a down payment on the estimated $35 billion that must be invested in 1.2 million open-to-the-public chargers by 2030 to meet expected demand, according to a McKinsey & Co. report. 

The U.S. Department of Transportation’s proposed rule for the expanded network, released last June, says the new chargers should be “convenient, affordable, reliable and equitable.” The rule requires standardization of plug-in ports and convenient methods for payment. Ports must also work 97 percent of the time, which has been a huge problem for the nascent industry. A recent study of chargers in the San Francisco Bay Area found that nearly a quarter of the region’s 657 chargers were out of order. 

The rule also sets Buy America guidelines for the equipment and requires union-like wages for the work. And, in line with President Joe Biden’s Justice40 executive order, it establishes the goal of investing 40 percent of the money in disadvantaged and rural communities.

But to meet the law’s affordability goals, the Department of Transportation, run by the former presidential candidate Pete Buttigieg, limited its proposed guidance to pricing transparency, claiming that this will “protect the public from price gouging.” The comments on the proposed rule from the companies running the existing charging networks—the ones most likely to take advantage of the government grants—suggest that they have other priorities.

“We strongly urge the government to avoid a state-by-state price regulation system,” Tesla and EVgo, which run two of the largest existing charging networks, and ChargePoint, which operates 1,500 stations and sells equipment for charging stations, said in a joint statement. “While we recognize the public investment at the heart of the program, it has also been designed to support, not supplant, an existing competitive market.

“The current economics of EV charging, driven largely by EV adoption, rely heavily on recouping capital investments over the useful life of chargers as utilization increases. Potential state limits on this return would chill private investment,” they wrote.

In plainer language: The price of filling up an EV battery at the new, government-funded stations is going to depend on how fast the venture capitalists and other investors can generate positive returns on their portion of the investment in a nationwide EV charging station network. Those pricing priorities could mean that anyone who visits a privately owned charging station, even if it is built substantially with government funds, will wind up paying electricity prices much closer to the current price of gasoline than to what they would pay if they could charge their car at home.

Failure to bring those prices down will eliminate one of the biggest incentives for rapid adoption of EVs, which all the major car companies are banking on. New EV prices are expected to fall dramatically over the next few years as battery technology improves. Early adopters ditching their old EVs for newer models will soon create a robust used EV market. More importantly, new incentives will make those used EVs more affordable for lower-income Americans, who will be allowed to use tax credits to purchase used EVs next year. And the law allows the credits to be taken directly off the price at the car lot.

But if the day-to-day cost of operating those vehicles is no different than the cost of their existing internal combustion engine cars, why should they bother to make the switch? Sure, there are reduced maintenance costs. But few people think about those kinds of long-term expenses.

As we saw earlier this year when gasoline prices surged, what people care about most are their immediate fuel costs. For a family that drives 13,500 miles per year, the U.S. average, buying a new or used EV and paying 20 cents per kilowatt hour, which is half the rate currently charged at many private EV charging stations (and would still be 46 percent more than the average cost of home-based charging), would save about $700 a year compared to paying $4 per gallon for gasoline. To put that in perspective: Reasonable prices at the electron pump will save the average four-person family who buys a new or used EV enough money on annual fuel costs to pay their grocery bills for more than a month.

Why is the price so high? To answer that question requires a quick primer on EV charging. There are four levels of charging. If you plug your EV into a standard 120-volt wall socket (Level 1 charging), it takes about two days to bring a 300-mile range EV from under 20 percent to 80 percent full, which manufacturers recommend for prolonging battery life. No EV owner who plans to use their car for a daily commute can get by with just a home-based Level 1 charger.

Install a 240-volt line at home (Level 2), and charging time drops to five or six hours—adequate for almost all home charging needs. If their local utility offers residential time-of-day pricing, drivers can save money by charging overnight. 

For long-distance travel, commercial EV fast chargers (Level 3) use higher-voltage direct current, which reduces charging time to under an hour. Installing superfast chargers (Level 4) reduces charging time to under 15 minutes. The initial aim of the government program is to build a national network of Level 3 and 4 chargers. The estimated cost for building Level 3 or 4 charging stations with at least four ports ranges from $300,000 to $1 million.

Yet commercial operators of EV stations with Level 3 and 4 chargers say the cost of construction isn’t the major reason for their higher rates. Rather, they claim that their prices are driven by the high rates utilities charge them for electricity, which include the additional demand charge that regulated utilities levy on all commercial and industrial customers. Utility demand charges, which are based on the peak electricity usage during a billing period, are designed to ensure that utilities have adequate resources to build and maintain the generating capacity needed to avoid blackouts when demand peaks. But unlike factories, shopping malls, or commercial office buildings, whose peak demands for power extend over many hours and occur on predictable schedules, peak demand at a charging station occurs sporadically; it may take place only a few times a day, for brief periods of time.

“Rate reform is essential to making the charging industry economically viable,” says Matthew Nelson, the director of government affairs for Electrify America, the Volkswagen subsidiary that currently operates 800 EV fast-charging stations across the U.S. and has plans to open 1,000 more by 2026. The company agreed to invest $2 billion in EV charging stations as part of its 2016 settlement with the United States and California for cheating on diesel emissions. “There are some markets where the cost of electricity is above $10 a gallon of gas equivalent,” Nelson told me.

Numerous state utility commissions are considering rate reforms, and Colorado has already made changes. ComEd, which serves the Chicago area, has submitted a plan to the Illinois Commerce Commission that “would help alleviate the upfront cost of installing new charging infrastructure by offering an alternative to demand-based rates,” a spokeswoman said in an emailed statement.

But there is also a technological solution, which would not only lower rates but also help reduce the need for new generating capacity to meet EV demand. The new EV stations could install large storage batteries, which are already commercially available and are an allowable construction expense under the Transportation Department’s proposed rule. Storage batteries could be charged late at night when electricity is cheapest and stations see little use, and then drawn down when EV driver demand is at its peak, thus avoiding high demand charges.

In addition to price, mass adoption of EVs will depend on deploying charging stations convenient to where people without access to home-based charging live and work, making them as ubiquitous as gas stations are today. That will require convincing landlords, high-rises with multistory parking lots, shopping and strip mall operators, employers, churches—indeed, anyone with a large parking lot—to install appropriately sized charging stations with a mix of Level 2 and Level 3 ports. Existing gas station franchisees, most of whose profits come from selling soda, candy, and cigarettes, not gasoline, might also be willing participants if someone helps them get into the mix.

Getting these stations built will be especially important in lower-income neighborhoods where there will be fewer home chargers. The infrastructure bill addressed that need by including an additional $2.5 billion for non–highway corridor EV station building grants.

While for-profit networks like EVgo and Electrify America will be the likely operators of many highway corridor stations, it remains an open question who will take advantage of the additional grant money, especially since much of it will be earmarked for disadvantaged communities. To date, most of the big retailers that have set up charging stations, like Whole Foods and Walmart, have partnered with the for-profits. 

That doesn’t have to be the case. The U.S. has a long tradition of nonprofits getting into the electricity game, ranging from the municipally owned utilities set up during the Progressive Era to the massive rural electrification and hydroelectric dam projects built during the Great Depression. Today, more than 2,000 cities and towns in 49 states draw their power from publicly owned utilities. The one in seven Americans who live in those communities enjoy rates that are 4 percent lower on average than surrounding communities served by their for-profit counterparts, according to the American Public Power Association. 

The Biden administration’s infrastructure and climate change bills have provided a golden opportunity to open the next chapter in that story. City and town governments and nonprofit neighborhood economic development and housing groups are well positioned to take advantage of the flood of money about to pour into the nation’s EV charging infrastructure. They know the local employers, landlords, retailers, churches, schools, and empty lots that can provide convenient sites. State governments looking to incentivize EV adoption can help them come up with the 20 percent match funds that are needed to draw the federal grants.

With no-cost capital and sharply reduced demand charges, these nonprofits could offer electric charging at half the price currently being charged by the for-profit chains, and still have sufficient cash to maintain and service their stations after paying their electricity bills. They will go a long way toward helping the Biden administration meet its Justice40 goals. And they will provide competition to the for-profit charging industry, which will lower rates for all drivers when they hit the road.

But the time to act is now. The Biden administration has already approved the EV charging station programs outlined by the states, which are now preparing their program rollouts. You can bet that the for-profit EV charging station chains are gearing up to apply for grants.

By this time next year, with the 2024 election on the horizon, the Biden administration will be anxious to make sure that projects funded by its signature legislative victories are visible to the public. As happened with the stimulus package that helped end the Great Recession, shovel-ready projects will move to the head of the line.

There are many reasons for working-class Americans to fear the coming EV revolution. While 150,000 jobs are expected to be created in new assembly plants and battery factories by 2030, states that depend on making parts of internal combustion engines and transmissions (Michigan, Ohio, and Indiana are the three largest) will see many of those jobs disappear over the next decade. The same will happen to a significant portion of the jobs maintaining and repairing internal combustion engine vehicles, which will affect nearly every city and town in the U.S.

The country needs to learn from the mistakes made during the deindustrialization era, which stretched from the mid-1970s until now and devastated many regions of the country. We need to adopt robust income support, training, and economic development policies for the workers, families, and communities that lose jobs during the transition.

But as consumers, working-class Americans—like all Americans—have a lot to gain by making the switch. EVs are much less costly to drive when the electricity is appropriately priced. The changeover will extend the purchasing power of every household, not just through reduced fuel prices but also through sharply reduced long-term maintenance costs. Families across the economic spectrum will benefit from reduced health care costs by eliminating the number one cause of air pollution, which is the major driver of the rising asthma rates in the U.S. (And EVs are fun to drive. You’ll never have to worry again about being able to accelerate fast enough to enter the highway.)

Widespread EV adoption will greatly benefit the climate of the planet, the competitiveness of the country, and the quality of life and economic security of individuals and families. But the nation will come up short on each of those goals if, in crafting the policies for rolling out this new technology, policy-making elites ignore the needs of middle- and lower-income Americans.

The post The Electricity Is Too Damn High appeared first on Washington Monthly.

On October 31, 2022, the U.S. Supreme Court will hear cases alleging that Harvard University and the University of North Carolina at Chapel Hill violated Title VI of the Civil Rights Act by discriminating against Asian American applicants in their admissions processes.

The Harvard litigation is the more prominent of the two cases, and the Court, when it renders a decision sometime next year, may very well rule that the nation’s oldest university discriminates against Asian American applicants, and use that as a reason to ban race-conscious affirmative action in higher education. That would mean the Court would overrule Grutter v. Bollinger, a 2003 decision involving the University of Michigan Law School in which the Court upheld the use of race as a plus factor in admitting members of underrepresented racial groups. 

The plaintiff in the Harvard and UNC lawsuits, Students for Fair Admissions, and the conservative activists behind them say the case pits Asian Americans against other people of color—African Americans, Latinos, and Native Americans. They claim that the only way to protect Asian Americans from unfair discrimination is to stop permitting race to be a plus factor for underrepresented racial groups. However, affirmative action has little to do with the central claims of discrimination—that Harvard, in a racially biased manner, rejects Asian American applicants for lacking the requisite character and family pedigree to become a Harvard student, primarily to the benefit of lesser-qualified white applicants. That’s not an affirmative action problem. That’s a white supremacy problem.

Yet, somehow, the problem of discrimination favoring whites to the detriment of Asian Americans has been shoehorned into an illogical legal theory ostensibly blaming affirmative action for that discrimination. When Harvard’s treatment of Asian Americans is analyzed under the appropriate legal theory, the proper remedy becomes clear: End racial preferences for whites, rather than abolish affirmative action for Black, Latino, and Native American students.

Has Harvard been giving preferential treatment to white applicants and admitting them over more qualified Asian Americans? The answer is yes, based on a statistical analysis of Harvard admissions data from 2014 to 2019 conducted by the social scientists Peter Arcidiacono of Duke University, Josh Kinsler of the University of Georgia, and Tyler Ransom of the University of Oklahoma. (Arcidiacono served as an expert witness for the plaintiff in the Harvard lawsuit.) The researchers examined how Harvard treated Asian American applicants in comparison to similarly situated white applicants. Their study’s primary focus wasn’t on how Asian Americans fared relative to Black and Latino students. No one disputes that Black and Latino students with lower qualifications are treated more favorably than Asian Americans and whites with higher qualifications by considering race as a plus factor. The unknown question that the study focused on was whether Asian Americans were held to a higher standard than whites.

Bottom line: The researchers found that Harvard consistently admitted whites over Asian Americans who had more robust academic and nonacademic qualifications. Starting with the differences in academic qualifications, as a group, Asian American applicants to Harvard are significantly more academically talented than white applicants. From 2014 to 2019, there were 42.5 percent more white than Asian American applicants. However, in the top 10 percent of applicants based on grades and test scores, there were 45.6 percent more Asian American than white applicants (7,225 versus 4,963). If Harvard had only used academic qualifications to admit whites and Asian Americans, the number of Asian Americans admitted would have increased by 40 percent. 

The racial bias in Harvard’s admissions process is starker when comparing white and Asian American applicants with similar academic credentials. Arcidiacono separated applicants into academic index deciles ranging from 1 to 10. The index is based on grades and standardized test scores—the lower the decile, the worse the academic qualifications. When comparing the admission rates for white and Asian American applicants in the same academic decile, Arciadiacono found a pattern. Whites were admitted at 1.82 percent in the fourth decile, while Asian Americans were admitted at just .86 percent. In the 10th decile, whites were admitted at 15.27 percent, while Asian Americans were admitted at 12.69 percent. On average, within the top seven deciles, whites had a 20 percent greater chance of being accepted than Asian Americans. Thus, the data tells us that, all things being equal academically, whites have a significantly stronger chance of getting admitted than Asian Americans, even though they are supposed to be evaluated according to the same standards. 

What could explain such a pattern? One possible explanation is that whites fared better than Asian Americans on the nonacademic factors that Harvard values. In addition to academics, Harvard considers an applicant’s extracurricular activities; evaluations and recommendations by teachers, counselors, and alumni; and status as an athlete. Harvard also judges an applicant’s intangible qualities through the “personal rating,” which is an attempt to capture character and personality. 

Perhaps academically weaker white applicants were admitted over academically stronger Asian American candidates because they do more extracurricular activities and receive stronger teacher recommendations. The problem with this explanation, Arcidiacono and his colleagues found, is that for most nonacademic factors Asian American applicants were as strong or substantially stronger than white applicants. Asian Americans had significantly better scores for extracurricular and overall alumni ratings and had similar scores for teacher and counselor ratings. So by Harvard’s metrics, Asian American applicants were deemed smarter and more well rounded than white applicants. The admit rate for Asian Americans should have been substantially higher than for whites. 

So why is Harvard rejecting strong Asian American candidates while admitting weaker white applicants? According to Harvard, their personalities are too bland.

The personal rating is the only criterion aside from athletics in which Asian Americans did significantly worse than whites, and thus a central reason why otherwise stronger Asian American candidates were rejected over weaker white applicants. The Harvard personal rating, according to an earlier ruling in the case, “summarizes the applicant’s personal qualities based on all aspects of the application, including essays, letters of recommendation, the alumni interview report, personal and family hardship, and any other relevant information in the application.” Admissions officers assign the personal rating based on their assessment of the applicant’s “humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.”

The personal rating is vague and highly subjective, and thereby susceptible to abuse. Harvard admissions officers were instructed to give applicants a score between 1 and 6, with 1 being the highest. For each number, the officers were provided with just a one-word description: (1) Outstanding; (2) Very strong; (3) Generally positive; (4) Bland or somewhat negative or immature; (5) Questionable personal qualities; (6) Worrisome personal qualities. Harvard provided admissions officers with little guidance in making highly subjective determinations about an applicant’s “outstanding” or “bland” character. 

Asian Americans were routinely given low scores on the personal rating—so low that among all racial groups, they ranked dead last. Apparently, Asian Americans as a group aren’t funny, aren’t courageous, lack grit, are mean-spirited, and follow instead of lead.

Another reason that less qualified whites were being admitted over more qualified Asian Americans is that Asian Americans do not come from sufficiently privileged families, Arcidiacono found in a separate study. Harvard labels socioeconomically privileged applicants as “ALDC,” which stands for “Athlete–Legacy–Dean’s List–Children of Faculty and Staff.” Given the family traits of ALDC applicants, not surprisingly, Harvard admissions officers designated only 1.8 percent of ALDC applicants as disadvantaged, while designating 12.6 percent of non-ALDC applicants as disadvantaged. For the class of 2019, 40.7 percent of legacy admits had parents who earned more than $500,000. 

Being an ALDC candidate opens the doors to Harvard wide open, and the vast majority are white. While the overall admit rate for all applicants was about 5.5 percent, the admit rate for white ALDC applicants was 43.6 percent. From 2014 to 2019, white ALDC students accounted for 43 percent of all whites admitted to Harvard. Moreover, white ALDC admits were academically weaker than the typical admit. Arcidiacono estimated that a staggering 75 percent of white ALDC admits likely would have been rejected if they had been a non-ALDC applicant. 

One of the best routes into Harvard, then, is to come from the right family. Unfortunately for Asian Americans, the vast majority—97 percent—did not fall into any of the four ALDC categories. If Harvard stopped giving preferential treatment to ALDC applicants, Arcidiacono speculates that “the share of white admits would drop significantly more than 6 percent and the share of Asian American admits would rise by more than 9 percent.” Thus, along with the personal rating, the inside track provided by ALDC status is another way that less-qualified whites beat Asian American candidates for spots at Harvard.

Here’s the important point. Any legal challenge to either the ALDC admissions track or the personal rating for discrimination against Asian Americans does not implicate affirmative action and Grutter. Grutter dealt with the constitutionality of an admissions policy that openly gives underrepresented racial minorities an admissions boost to achieve student body diversity. The defendant, Lee Bollinger, was president of the University of Michigan until 2002 and now leads Columbia University. Grutter held that universities may use race as a plus factor in admissions without violating the Constitution’s equal protection clause, as long as the use of race is narrowly tailored to further a compelling interest in student body diversity.

Harvard does not dispute that it uses race as a plus factor for underrepresented racial groups. However, it vehemently denies that it covertly discriminates against Asian Americans to the benefit of whitesthrough the personal rating. But Grutter focuses on overt, not covert, discrimination, and thus says nothing about evaluating a claim under the Constitution and Title VI that Harvard surreptitiously applies the personal rating in racially discriminatory fashion against Asian Americans. 

A different line of Supreme Court decisions, unrelated to affirmative action, guides the evaluation of a claim that a facially race-neutral policy has been enacted or administered in a racially biased manner. The classic case establishing a pattern of discrimination is Yick Wo v. Hopkins, an 1886 decision in which a person of Chinese ancestry claimed that his application for a permit to operate a laundromat was denied because of his race. Approving or denying a license is not, on its face, a racial decision. The plaintiff, however, demonstrated that all 200 applications by persons of Chinese ancestry had been rejected. SCOTUS held that the evidence established a clear pattern of discrimination. Yick Wo set forth the rule that a constitutional violation can be established if a clear racial pattern emerges from a series of individual decisions applying a facially race-neutral policy. 

To prove a pattern of racial discrimination, the Court requires that two elements be met. First, the plaintiff must demonstrate a gross statistical racial disparity arising from a series of decisions made over a significant period. Second, the plaintiff must prove that the decision-making process giving rise to the racial pattern is susceptible to abuse of discretion. A process easy to abuse is a highly subjective one. If the defendant then fails to provide a persuasive nonracial explanation for the pattern, a constitutional or statutory violation will be found.

In 1977, SCOTUS applied the test in Castaneda v. Partida and held that a racial pattern in the grand jury selection process resulted in the systematic exclusion of Mexican Americans. In Castaneda, the plaintiff showed that over 11 years, only 39 percent of those selected for grand jury service were Mexican Americans, even though they accounted for 79.1 percent of the jury pool. The plaintiff also showed that the grand jury selection process was highly subjective: There were no guidelines or standards for choosing grand jurors, giving decision makers unfettered discretion. The burden of proof then shifted to the state to rebut the prima facie case of a racial pattern, which they failed to do.

A strong argument can be made that the statistical evidence gathered by Arcidiacono demonstrates a clear racial pattern in assessing the character of Asian American applicants. First, statistical evidence establishes a gross disparity between the personal rating scores for Asian Americans compared to all other racial groups. Arcidiacono found that “every model of the personal rating shows a significant penalty against Asian Americans.” Over six admissions cycles, on average, Asian Americans ranked dead last among all racial groups in the personal rating. Black applicants ranked the highest, followed by Latinos, then whites, then Asian Americans at the bottom. Furthermore, 21.27 percent of white applicants received a top score of 1 or 2 on the personal rating, while only 17.64 percent of Asian Americans received a 1 or 2. If Harvard treated an Asian American the same way it treated a Black applicant, their odds of receiving a 1 or 2 would increase by about 40 percent.

The difference between Asian American and white personal rating scores is starkest in the all-important 10th academic decile. In the 10th decile, 22.20 percent of Asian American applicants scored a 1 or 2 on the personal rating. By comparison, 29.62 percent of white applicants in the 10th decile scored a 1 or 2, giving whites a 33 percent greater chance than Asian Americans of scoring a 1 or 2.

Two additional factors strongly suggest that Asian Americans were not being evaluated fairly on the personal rating. The first is that the personal and academic ratings typically go hand in hand. Arcidiacono found that “higher academic index deciles are associated with higher probabilities of receiving a 2 or better.” In other words, if an applicant has a high academic rating, then there’s a greater chance that applicant will garner a high personal rating. 

The link between the academic and personal ratings broke down with Asian Americans. The personal rating of Asian Americans did not go up nearly as high as it did for whites as the applicants’ academic qualifications got stronger. The result is that white applicants in the lower academic deciles had better personal rating scores than Asian Americans in the higher academic deciles. White applicants in the sixth decile had a better chance of scoring a 1 or 2 on the personal rating than an Asian American in the 10th decile.

The second factor suggesting that something suspicious was occurring in the personal rating assessment of Asian Americans is the finding that “Asian Americans are stronger on the observables associated with the personal rating” than white applicants. In other words, Asian Americans scored the same or better than whites on the observable factors that are supposed to help determine the personal rating, such as the extracurricular rating. If an applicant’s observable charity work to feed the homeless is the basis for a high score on the extracurricular rating, that very same charity work should be the basis for a high score on the personal rating. Instead, for Asian Americans, a high score on the extracurricular rating did not translate to a high score on the personal rating. 

The racial disparity in personal rating scores between Asian Americans and whites would not matter much if it were not a critical factor in admissions. Arcidiacono found that “the personal rating is strongly correlated with admission: 84 percent of white admits scored a 2 or better on the personal rating, compared to 18 percent of white rejects.” If an applicant does not receive a 1 or 2 on the personal rating, that effectively amounts to a “no” decision.

Harvard, for its part, strongly denies racial bias in the personal rating or any part of the admissions process. In a 2017 study commissioned by the university, David Card, an economist at the University of California at Berkeley, argued that Arcidiacono’s analysis ignored factors such as socioeconomic background, quality of an applicant’s high school, and the personal essay. (Card won the 2021 Nobel Prize in Economics for unrelated work.) Those difficult-to-quantify elements go into Harvard’s assessment of nonacademic qualities, and thus can’t fit into Arcidiacono’s data-based approach, Card contended—not exactly a reassuring statement for those concerned about potential bias in vague, unquantifiable standards of judgment.

Three additional factors support the existence of a racial pattern of decision making in the personal rating. First, numerous studies show that unfettered discretion makes a decision maker susceptible to implicit biases. Second, as Vinay Harpalani, a professor at the University of New Mexico School of Law, argues, the low scores for Asian American applicants on the personal rating reinforce pernicious racial stereotypes of Asian Americans lacking personality and charisma. Third, they may reflect and reinforce the dehumanizing stereotype that Asian Americans are faceless and indistinguishable. 

If the Supreme Court justices care about protecting Asian Americans from unfair discrimination, then they should hold that Harvard engaged in a pattern of biased evaluation of Asian American applicants to the benefit of white applicants, and require Harvard to either eliminate the personal rating or fix it. To the extent that other racial groups have unjustifiably benefited by being rated higher on the personal rating than Asian Americans, fixing the personal rating would eliminate that harm as well. Race should play no role in assessing a person’s character. The justices should also declare that the ALDC admissions track is unfair discrimination and require Harvard to abolish it. And if the justices also care about ensuring the inclusion of underrepresented racial groups in higher education, then they should uphold Grutter. They can do both—protect Asian Americans from racial bias and promote inclusion of underrepresented racial groups. To overrule Grutter in the name of protecting Asian Americans would be raw judicial activism that does little to actually protect Asian Americans from discrimination that favors whites. To ban affirmative action would be a political act simply furthering many of the justices’ long-held animus toward racial inclusion.

The post Affirmative Action for Lax Bros appeared first on Washington Monthly.

When Senator Joe Manchin and Senate Majority Leader Chuck Schumer reached a climate bill agreement this summer, they managed to win a quick endorsement from Manchin’s left-wing antagonists from the Sunrise Movement. The climate hawks pragmatically tweeted, “If 50 Senators are actually committed to voting for a package that reduces emissions by 40% by 2030, Congress must pass it immediately.” A couple days later, Sunrise took a swipe at oil giant ExxonMobil on Twitter: “While we’ve watched our planet burn, Exxon made $18,000,000,000 this year. Big Oil is literally profiting off our destructions.” 

Sunrise may not have been aware that on the same day, the CEO of ExxonMobil was also praising the Schumer-Manchin deal. “We’re pleased with the broader recognition that a more comprehensive set of solutions are going to be needed to address the challenges of an energy transition,” Darren Woods said on a second-quarter-earnings conference call. 

ExxonMobil wasn’t the only corporation to cheer the accord. Manchin’s office produced a 33-page list of supportive statements from natural gas, nuclear, utility, manufacturing, and retail representatives, as well as from labor and environmental organizations.

Support was hardly universal in the business community. Washington’s main oil and gas lobby, the American Petroleum Institute, organized a letter of opposition, joined by 58 other trade associations. The U.S. Chamber of Commerce produced another opposition letter, backed by 253 allied business groups and primarily focused on the bill’s tax impacts. The pharmaceutical lobby criticized the bill’s empowerment of Medicare to negotiate lower drug prices.

But without a united corporate front, what opposition existed was muted, lacking the firepower of a one-sided multi-million-dollar attack ad campaign. President Joe Biden signed the Inflation Reduction Act on August 16, less than a month after Manchin and Schumer shook hands.

Manchin’s support was mathematically necessary for Schumer to secure the minimum 50 votes to pass a filibuster-proof budget reconciliation bill. But Manchin’s ability to stitch together a corporate-environmental coalition brought political value beyond the head count. He pacified corporate America by dividing it, removing a major obstacle from Democratic efforts to sell the bill to the public. 

While Democrats are often rhetorically comfortable railing against corporations, they have a long history of smoothing the path for progressive legislation by picking off some corporations and dulling the edge of the opposition. For example, in 1934, as recounted in Arthur Schlesinger’s The Coming of the New Deal, when Franklin D. Roosevelt was battling with the head of the New York Stock Exchange, Richard Whitney, over proposed legislation to regulate securities trading, his aides identified a “moderate Wall Street group.” The traders of Whitney’s exchange were an insular group. Other Wall Street investment bankers, Schlesinger explained, “had long resented the Whitney regime.” They also had more contact with clients, which gave them a better read of public opinion.

The White House and congressional allies drove a wedge between the groups by crafting a bill that created a new Securities and Exchange Commission, but shied away from embedding rigid requirements in the statute. 

More recently, regarding health care reform, Barack Obama accomplished what Bill Clinton could not, in part thanks to the help of the oft-loathed pharmaceutical industry. Sixteen years before, President Clinton and his health care point person, First Lady Hillary Clinton, viewed the insurance industry as an enemy to be defeated. The insurance industry responded—before the Clintons finished drafting any legislation—with a devastating $20 million ad campaign. A fictional married couple in the near future, “Harry and Louise,” slogged through a pile of health care bills, complaining about services no longer covered and a lack of insurance plan choices. The more the Clintons attacked insurance companies, the more money the companies raised to fund the ad campaign. Spooked congressional Democrats didn’t give the Clinton plan a vote.

Obama, in contrast, eagerly collaborated with a partnership between the progressive health advocates at Families USA and the Pharmaceutical Research and Manufacturers of America (PhRMA), the drugmakers lobbying operation. While developing the Affordable Care Act, Obama agreed to shelve proposals that could have allowed cheaper imported medicines, and in turn, the partnership funded a new “Harry and Louise” ad campaign, using the same actors but in support of the bill. The insurance industry donated $86 million to the U.S. Chamber of Commerce’s effort to kill the bill (while still negotiating with the White House in hopes of shaping it), but PhRMA’s pro-reform ad campaign totaled $150 million. In the final weeks of the legislative effort, the U.S. Chamber of Commerce spent $5.5 million in attack ads, then PhRMA countered with $6 million of its own.

Democrats have become increasingly anxious to address the intensifying climate crisis, but their legislative attempts to do so—from Clinton’s ill-fated “BTU tax” to John Kerry’s ultimately futile negotiations with Lindsey Graham—have been a series of belly flops. 

Without the benefit of historical context, you might be inclined to view the Manchin-Schumer final product as an anomaly—the awkward result of an evenly divided Senate. But a look back at the past 30 years of climate bill failures, combined with a clear-eyed understanding of how other progressive breakthroughs came together, shows that what Schumer and Manchin did provides a template that Democrats will need to replicate if they are to build on their recent environmental success. Because whenever Democrats have tried to steamroll fossil fuel interests, they’ve been flattened. When they’ve divided those interests, they’ve won.

In mid-February 1993, Bill Clinton had not yet been in office for a month. The new president’s job approval was above 50 percent, and Democrats held 57 Senate seats and a 42-seat House majority. Seeking to leverage his brief honeymoon, he used his first address to a joint session of Congress to propose an economic growth and deficit reduction package that included an energy tax. His sales pitch to Congress and the nation was almost comically nerdy, as he compared his preferred BTU tax (referring to a British thermal unit, the amount of energy needed to increase the temperature of a pound of water by 1 degree) to competing ideas considered in internal White House deliberations:

Our plan does include a broad-based tax on energy, and I want to tell you why I selected this and why I think it’s a good idea. I recommend that we adopt a BTU tax on the heat content of energy as the best way to provide us with revenue to lower the deficit because it also combats pollution, promotes energy efficiency, promotes the independence, economically, of this country as well as helping to reduce the debt, and because it does not discriminate against any area. Unlike a carbon tax, that’s not too hard on the coal states; unlike a gas tax, that’s not too tough on people who drive a long way to work; unlike an ad valorem tax, it doesn’t increase just when the price of an energy source goes up. And it is environmentally responsible. It will help us in the future as well as in the present with the deficit.

Clinton may have believed that he had cleverly threaded a political needle and crafted the most palatable policy solution. But most voters did not feverishly applaud the compelling case that a BTU tax beats an ad valorem tax. Corporations seized the weak target with a one-two punch. First, various industries—ethanol, diesel fuel, aluminum smelters, heating oil, utilities—successfully pressured the White House for tailored exemptions. The BTU tax compromise passed the House in May 1993, but environmentalists were deflated.

Meanwhile, a broader corporate coalition had formed to kill the weakened BTU tax outright. The National Association of Manufacturers, the U.S. Chamber of Commerce, and the American Petroleum Institute formed the American Energy Alliance, with 1,400 business and trade associations as members. They spent heavily on a marketing campaign in 20 states, focusing on two oil state Democrats on the Senate Finance Committee, Oklahoma’s David Boren and Louisiana’s John Breaux. Since the committee had 12 Democrats and 10 Republicans, losing one committee Democrat was enough to deny the president’s plan a majority.

Clinton lost Boren, while Breaux pushed a gas tax increase as a revenue-raising alternative. The corporate lobbying also made several other Democrats skittish, prompting the White House to conclude that going around the Finance Committee straight to the Senate floor wasn’t an option. By June, with no path to passage, Clinton abandoned the BTU tax and eventually settled for a modest gas tax increase that had a negligible impact on greenhouse gas pollution.

Four years later, when Clinton signed the Kyoto Protocol, the first international climate treaty with legally binding targets for reduced greenhouse gas emissions, the business opposition was even more galvanized. In the years preceding the Kyoto accord, the Global Climate Coalition—a lobby composed of many members of the American Energy Alliance—had been stoking concerns that global warming wasn’t settled science. In 1997, the GCC spent $13 million on an ad campaign attacking the emerging Kyoto agreement as a scheme by “China, India, Mexico, and Brazil” to “force American families to restrict our use of … oil, gasoline, and electricity.”

In short order, the Senate bought the GCC’s propaganda. Unanimously, the upper chamber passed a resolution expressing opposition to any climate agreement in which the United States would be legally required to cut greenhouse gas emissions but developing nations would not. The resolution put Clinton in an impossible position, as any requirement on developing nations was a nonstarter among most participants in the international negotiations. Seeing that it was doomed to fail, Clinton signed the treaty but never sent it to the Senate for ratification.

By 2009, after more than a decade of inaction in Washington and rising temperatures globally, the pressure to tackle climate change had intensified. On the campaign trail the prior year, Barack Obama spoke more urgently about the crisis than Clinton ever had. He became the first president to mention climate change in his inaugural address. Yet the Democratic Party still was not united around the issue. The Senate Democratic Caucus totaled 58 members at the beginning of Obama’s presidency but also had a much larger moderate faction than it does today. In particular, 18 Senate Democrats represented the top coal-producing states.

In April 2009, the Senate voted on amendments for its annual budget resolution. Under Senate rules, the amendment process was an opportunity for Democrats to designate issues as eligible for the filibuster-proof budget reconciliation process. If climate change made the cut, Senate Democrats could pass a comprehensive policy without worrying about finagling Republican votes. But when Republicans introduced an amendment barring climate policy from reconciliation, it passed overwhelmingly, with 26 Democrats—nearly half the caucus—crossing the aisle. Democrats who voted to keep climate out of reconciliation and are still in the Senate include Colorado’s Michael Bennet, Pennsylvania’s Bob Casey, Illinois’s Dick Durbin, Minnesota’s Amy Klobuchar, Michigan’s Debbie Stabenow, Montana’s Jon Tester, and Virginia’s Mark Warner.

Undeterred, Democrats sought to craft a bipartisan climate policy. Such a process was already under way in the House. Energy and Commerce Committee Chair Henry Waxman was a California liberal who in November 2008 bumped Michigan’s auto industry–boosting Representative John Dingell from the committee’s top spot in a contentious caucus vote, with Speaker Nancy Pelosi’s tacit backing.

Waxman won because everyone knew that Dingell would not pursue a climate bill. But, as detailed in The Climate War by Eric Pooley, an expert on climate politics, Waxman understood that he would need Dingell supporters to pass such a bill. With the help of fellow committee member Ed Markey of Massachusetts, Waxman reached out to the vanquished. He kept some of Dingell’s committee staff and told Rick Boucher, a Virginia coal country House Democrat, “I’d like you to write the bill with me.” Boucher was eager to craft a climate bill that helped develop technology to capture and sequester carbon emissions so coal could remain a viable industry.

Soon a golden opportunity walked through Waxman’s door. Fred Krupp of the Environmental Defense Fund shared with Waxman a forthcoming proposal from the U.S. Climate Action Partnership (USCAP), a coalition of environmentalists and corporations, including some fossil fuel companies. (A few USCAP members were former Global Climate Coalition members who were no longer denying the science.)

After two and a half years of internal deliberations, USCAP had crafted a version of “cap-and-trade”—in which companies are issued a finite number of tradable greenhouse gas emission permits, limiting the overall amount of pollution while giving companies some flexibility regarding how fast they reduce their emissions. As described by Pooley, Krupp “predicted [to Waxman] that industry would be relatively flexible about targets if it could get free allowances and [carbon] offsets needed to defray costs,” and defended the corporate case for free allowances on the grounds that their value would be passed on to consumers. Some climate hawks viewed this as corporate grift. Waxman and Markey were initially “leery” but were impressed by the support USCAP was getting from some of the larger environmental groups. In turn, Pooley wrote, the two congressmen “began to see the [USCAP] blueprint as a way to remake the politics of global warming.”

With Boucher’s help, Waxman and Markey worked closely with the utility industry, much of which relied on coal. As a result, utilities got lots of free permits in their bill—35 percent of what was available. Coal got $10 billion over 10 years for carbon-capture research and development, plus bonus permits for companies that use such technology in the future. (The bill also would prevent the EPA from using the Clean Air Act to regulate carbon emissions from existing coal plants.) But, per Pooley, “Big Oil, curiously, was sitting out of the early negotiations, so Waxman and Markey made a decision … Oil refiners would get just 2 percent of the allowances … This would cause Big Oil to go on the warpath, but that was bound to happen anyway. And the power sector was the key to the deal.”

In part because of the disagreements between the oil and utilities sectors, USCAP never formally endorsed the bill. But the compromises were still enough to squeak the bill through the House on a 219–212 vote, though 44 Democrats—mainly from the South and Midwest—broke ranks. Eight Republicans who crossed the aisle provided the margin of victory.

That victory was fleeting. Conservatives were fired up and scorched the bill as a “cap and tax” job killer. The main coal lobbying operation was implacable and scoffed at the goodies Boucher had secured. (The backbreaking efforts by Boucher, a 14-term congressman, to preserve for his constituents a role for coal in a green energy economy were rewarded with his defeat in the 2010 elections.) The American Petroleum Institute got off the sidelines and pounded the bill as well, and the divided USCAP couldn’t give Waxman and Markey any air cover.

The battered House bill limped across the finish line. Senate Democrats did not rush to revive it, and the White House wasn’t interested in trying to force it on them. (As soon as the House bill passed, White House Chief of Staff Rahm Emanuel expressed his doubt to Obama that the Senate would step up on climate.) Senators Barbara Boxer, Joe Lieberman, and John Kerry had been trying to craft their own bill, but they didn’t want to plow ahead without a Republican cosponsor. The 2008 presidential runner-up John McCain had previously cosponsored cap-and-trade legislation with Lieberman and, in 2003 and 2005, successfully pressured his party leadership to put it on the Senate floor. But McCain’s bipartisanship withered following his defeat to Obama, and he wouldn’t join Lieberman for a third act.

Then, in October 2009, hope appeared in the form of Lindsey Graham. With Kerry, Graham wrote a New York Times op-ed, “Yes We Can (Pass Climate Change Legislation).” Staying away from the now-charged phrase “cap-and-trade,” they proposed “a market-based system that will provide both flexibility and time for big polluters to come into compliance without hindering global competitiveness or driving more jobs overseas.” They emphasized support for nuclear power, insisted “we must recognize that for the foreseeable future we will continue to burn fossil fuels,” and urged America to “become the Saudi Arabia of clean coal.” All of that wasn’t very different from the substance, if not the perception, of Waxman-Markey. But while the House bill left the oil industry in the cold, Kerry and Graham offered to include a “compromise on additional onshore and offshore oil and gas exploration.”

In his memoir, A Promised Land, Obama wrote, “I wasn’t wild about having to depend on Graham,” and once joked with Emanuel that in a heist movie, “Lindsey’s the guy who double-crosses everyone to save his own skin.” But Emanuel replied, “Unless Lincoln and Teddy Roosevelt are walking through that door, buddy, he’s all we got.” And Graham had stuck his neck out far enough to risk losing support at home. At a South Carolina town hall the day after the op-ed ran, angry constituents accused Graham of making a “pact with the devil” and having “betrayed this nation.” The blowback didn’t scare Graham off, but as The New Yorker later reported, it prompted him to bring the Democrat-turned-independent Lieberman into negotiations with Kerry.

Six months after the joint op-ed, the “tripartisan” team had a deal. Senators kept makers of petroleum products out of the permit trading system. They would, though, be able to purchase allowances at a fixed price instead. While that wasn’t enough to get an endorsement from the American Petroleum Institute, Kerry, Lieberman, and Graham extracted a backroom promise of silence. “They would not run ads, they would not lobby members of Congress, and they would not refer to our bill as a carbon tax,” an anonymous participant told The New Yorker. On April 22, 2010, Kerry announced that three oil companies would explicitly endorse the bill at a rollout event in four days’ time.

Something else happened on April 22. The Deepwater Horizon rig sank in the Gulf of Mexico, causing a colossal oil spill that would take five months to contain. The rig was owned by BP, one of the oil companies prepared to endorse the climate bill. Not only did the disaster lessen the value of BP’s endorsement, but it also prompted calls on the left for tougher offshore drilling requirements, the exact opposite of what Graham wanted from a climate compromise.

And another thing happened on April 22. Several news outlets ran stories, based on information from anonymous aides, reporting that Senate Majority Leader Harry Reid planned to address immigration reform before taking up any climate bill. (The New Yorker later attributed some of the leaks to Reid’s office.) As there was no immigration bill to speak of at the time, this sounded to Graham like a vote of no confidence in the climate deal.

Moreover, Reid had already upset Graham that day regarding the climate bill’s oil industry compromise. Graham wanted Reid to issue a statement batting down characterizations of the deal as a “gas tax.” A week had passed since FoxNews.com ran a story headlined “WH Opposes Higher Gas Taxes Floated by S.C. GOP Sen. Graham in Emerging Senate Energy Bill,” sourced to anonymous senior administration officials. Graham was livid, convinced that the White House was trying to sabotage the deal and wreck his standing in South Carolina. Knowing that the Fox story jeopardized their agreement, Kerry and Lieberman successfully pressed the Obama White House to issue a statement saying, “The Senators don’t support a gas tax, and neither does the White House.” Graham wanted Reid to issue something similar, but according to The New Yorker, he got only a tepid statement promising to “review” the bill. Why? Because Reid did not trust Graham and thought the whole proposal was a trap to hang what could be branded a gas tax around the Democrats’ necks.

On April 24, Graham backed out of the deal, with a letter blaming the press reports that immigration was taking precedence over climate. However, The New Yorker reported that “immigration was mostly just an excuse for his anger” over Reid’s handling of the gas tax flap. And in early May, Graham told Climatewire, “Forget about immigration. There’s something new here,” referring to the Deepwater Horizon spill. “I realize that drilling politics has changed. But … [if] we abandon drilling, OPEC becomes the biggest winner. And that’s the whole reason for getting involved in this bill.”

As Obama recounted in his memoir (without mentioning anything about the gas tax matter), “Rumors began circulating that [Graham] was looking for an opportune time to abandon the effort altogether … before the Deepwater accident. With newscasts suddenly flashing hellish images of a burning rig, we knew that environmental groups were sure to back off any bill that expanded offshore drilling. That, in turn, would give Graham the excuse he needed to jump ship.”

Later in May, Kerry and Lieberman introduced the bill, with new provisions making it easier for states to stop offshore drilling plans. They retained support from the three oil companies and the American Petroleum Institute’s pledge for silence, secured in the previous month. But without Graham’s support, the bill was doomed. No other Republican was interested in rounding up a sufficient number of Republican votes, and Reid never tried bringing the bill to the Senate floor.

That failure effectively ended, for the next several years, Democratic attempts to solve the climate crisis by compromising with corporations. Climate activists, who had been somewhat deferential during the sausage-making process, changed tack. “So now we know what we didn’t before: making nice doesn’t work,” wrote 350.org leader Bill McKibben in a TomDispatch essay nearly four months after the collapse of Kerry-Lieberman-Graham. “It was worth a try, and I’m completely serious when I say I’m grateful they made the effort, but it didn’t even come close to working. So, we better try something else.” That something else was “a movement … Since we’ll never have the cash to compete with Exxon, we better work in the currencies we can muster: bodies, spirit, passion.”

Soon that movement had a focus: stopping the proposed Keystone XL pipeline project, which would extract oil from Canadian “tar sands” and ship it to America. In a YaleEnvironment360 piece, McKibben explained the strategy: 

North American environmentalists are now fighting a simpler, more basic battle—not for overhauling laws and economies, but simply to keep carbon in the ground. It’s not an elegant battle with lots of complicated legislation; it is an elemental one, easy to understand, worth going to jail for. We know that we’re simply buying time … But if we can stop them, maybe the planet will come to its senses about global warming.

After years of grassroots civil disobedience, Keystone became a political football. Obama responded favorably to the political pressure, and his State Department rejected a critical permit. Then Donald Trump reversed that decision, and Joe Biden reversed Trump’s decision.

What Keystone did not become is a catalyst for resolving the climate crisis. The broad environmental-labor-business coalition that supported Waxman-Markey, however tenuously, splintered, as only devout environmentalists were interested in stopping individual fossil fuel projects.

However, “keep it in the ground” became an organizing focus for the Democrats’ growing faction of sharper-edged progressives. When Representative Alexandria Ocasio-Cortez came to Washington in 2019, she immediately rallied progressives behind her sweeping vision for a “Green New Deal.” She drafted a controversial resolution that called for moving toward fueling America with 100 percent renewable energy in 10 years, with no offers of help for fossil fuel companies in the rapid transition. Her Senate partner? Ed Markey, who 10 years earlier was by Waxman’s side wheeling and dealing with the carbon-emitting crowd.

The Green New Deal resolution was a legislative bust. Senate Republicans put a version of it on the floor, hoping to embarrass Democrats. Still, in a procedural vote, most Democrats sidestepped with a “present” voice, while a few joined Republicans in supporting a filibuster. Nancy Pelosi never gave it a vote in the House.

Once Democrats controlled Washington again in 2021, albeit with no margin for error, climate was back on top of the agenda. But party leaders did not pursue a bipartisan
strategy—understandably, considering how politically polarized the climate issue had become. Less understandable was why the Biden administration crafted its initial climate plan without the input of Joe Manchin. Everyone knew that the West Virginia senator was far more partial to fossil fuel interests than anyone else in the Democratic Caucus. Still, Senate Democrats could not reach the minimum 50 votes to pass legislation through reconciliation without him. Only after Manchin publicly rejected the sprawling Build Back Better package, and expectations for climate action in 2022 hit rock bottom, did his fellow Democrats accept a climate bill compromise on his terms.

Many environmentalists were skeptical that Manchin could or would play a positive role in the climate fight. But Manchin showed that he could bring some corporations on board and dull the criticism of others. And that helped avoid the backlash that felled Waxman-Markey. Climate policies may be popular in the abstract, but they are often vulnerable to being attacked unfairly as being disruptive to daily life and costly to household budgets. Any attempt by opposing corporations to smear a Manchin-backed bill as some sort of socialist plot to take away your cars or your charcoal briquettes would have looked silly, so they didn’t bother.

Climate activists drew the wrong lesson from the Kerry-Lieberman-Graham debacle. “Making nice” with corporations “didn’t even come close to working,” McKibben wrote. But that’s wrong. It came really close to working. With some more trust between Reid and Graham, and fewer explosions in the Gulf of Mexico, Obama might well have signed a transformative climate bill. What didn’t work at all was the strategy to save the climate by blocking one pipeline at a time or drafting ideologically pure legislation without any plan to neutralize corporate America’s capacity to drown Democrats in disingenuous messaging.

Evenly divided Senates that give any member outsized power, especially in the reconciliation process, are rare. Manchin won’t always be mathematically capable of stymying legislation all by himself. In a more Democratic Senate, climate hawks might entertain bypassing Manchin altogether and drafting legislation without him. But Clinton and Obama had much bigger Senate majorities upon taking office than Biden had, and yet still could not ram through ideologically pure legislation. Regardless of future Senate math, Democrats should not forget that the path to legislative success is much smoother when corporate America is divided, not united.

The post To Save the Planet, Divide and Conquer appeared first on Washington Monthly.

In the lead-up to this year’s primaries, Ohio state Representative Michael Skindell got a call from a voter with considerable clout—his mother. Like many in the state, she felt frustrated having to apply, year after year, to receive mail-in ballots––especially during this year’s electoral chaos, when a tumultuous redistricting battle in the state led to primary elections in both May and August. Why, she asked, couldn’t she just sign up once and be done with it—that is, become a permanent absentee voter?

The calls flooded in, not only from Skindell’s mother, but from her neighbors, too—older voters who told him it was confusing to keep track of off-year elections to ensure that they applied for absentee ballots in time. Skindell’s mother and her friends joked that with age, remembering to vote is hard enough, let alone during odd circumstances like this year’s.

The concern is valid, whether one is “aged” or not. August’s primary held the lowest voter turnout in a statewide primary since at least 1962, with less than 8 percent of voters turning out. Even though Ohio, like 26 other states, has a no-excuse absentee voting policy, the need to sign up for a mailed ballot every election likely contributed to the low turnout.

Responding to frustrations like these, Skindell decided to introduce legislation to create a permanent mail-in ballot application list for the state. Giving voters the option of “single sign-up”—that is, automatically having their ballots mailed to them, rather than having to remember to apply before every election—would seem like a simple, noncontroversial reform. But in today’s polarized political environment, it wasn’t seen that way by Skindell’s Republican colleagues, who have a supermajority in the Ohio legislature and are allowing Donald Trump’s attacks on mail-in voting to dictate their agenda. To make any progress at all, Skindell chose to introduce a compromise bill that would allow voters to automatically get an application to apply for absentee voting, rather than just a ballot, as he would have preferred. Yet even that concession wasn’t enough for the Ohio GOP, which has thus far been largely resistant to even considering the idea—pitting them against the will of the people, as a 2020 poll showed that 60 percent of Ohioans were in favor of creating a permanent vote-by-mail list.

Similar battles over single sign-up are taking place around the country, and are emblematic both of the larger vote-by-mail policy debate and of electoral reform more generally. Democrats are trying to tweak the electoral system to make it easier to cast ballots, but even the most seemingly uncontroversial of those efforts are running into a wall of opposition from Republicans. Voters are likely to be the losers in that contest, but, given the popularity of policies that make it easier to vote, it’s not clear that Republicans will be the winners.

Nearly 24 years ago, Oregon solved the problem of repeating absentee sign-ups by making vote by mail the default for the entire state—every registered voter is mailed a ballot weeks before the election, which they can fill out at home and return either through the mail, in person at a polling place, or in a drop box. Since then, seven more states—Washington, California, Nevada, Utah, Colorado, Vermont, and Hawaii—have gone the full “vote at home” route. Prior to 2020, this was not a partisan issue: Utah, for instance, is an overwhelmingly red state, whereas Hawaii is overwhelmingly blue. Recent research, meanwhile, confirms that voter turnout goes up the most in full vote-at-home states, as Paul Glastris noted recently in the Washington Monthly.

But it’s not necessary to go full vote at home to make single sign-up work. Washington, D.C., and six states—Montana, Arizona, Virginia, Maryland, New Jersey, and Illinois—already have permanent absentee lists available to all voters, some enacted just in the past two years. Eleven other states, including Alabama, Delaware, Kansas, and New York, offer permanent vote by mail to people with disabilities, people over 65, or both. Single sign-up not only makes voting more convenient but also saves taxpayers money, because, among other things, local election officials “don’t have to spend time processing the applications,” notes Phil Keisling, former secretary of state of Oregon and chair of the National Vote at Home Institute, a nonprofit research group.

Montana and Arizona were the first non-vote-at-home states to enact single sign-up––Montana in 2005, Arizona in 2007. At the time, the balance of power in Montana’s state legislature was nearly even. Meanwhile, Arizona had a Republican majority in both chambers of its state legislature. Before Republicans became captured by the “Big Lie” about election fraud, two comfortably Bush-voting states, each with their own state party balances, both welcomed single sign-up reform.

Years later, several blue states were inspired to adopt single sign-up policies by the success of mail-in voting during the pandemic. Virginia passed no-excuse mail-in voting and a permanent mail-in list in 2020, leading about 60 percent of voters to vote absentee later that year—an increase from around 14 percent in 2016. (Virginia’s absentee voters include those who vote early in person. About 956,000 people, or 21 percent of voters, returned mailed ballots.) Maryland, where half of the electorate voted by mail in 2020, enacted a permanent mail-in list in 2021. (The law didn’t go into effect until 2022 because Republican Governor Larry Hogan refused to sign it.) In 2020, Washington, D.C., mailed ballots to all registered voters—and has continued doing so on a temporary basis since. The city council is now considering moving to universal mail-in voting.

Just last year, Illinois enacted a permanent vote-by-mail list, which takes effect before the 2022 midterms. Illinois voter Matt Slade has voted by mail in every election since 2014, beginning when he worked on a night shift at a workplace an hour from his home. He has already signed up for Illinois’s new, permanent list. “It was very easy for me to make the decision so I don’t have to request a mail-in ballot every single election,” Slade told me in a Twitter direct message. “It’s just much easier for me to early vote by mail than it is to try make it on election day.”

And in New Jersey in July, Governor Phil Murphy signed a voting package including a measure that allows voters to sign up for the state’s permanent mail-in ballot list online. The state has had this list since 2009, when they allowed voters to apply for absentee ballots for a single election, all elections in a calendar year, or all general elections. This was expanded in 2018 to allow applications for single elections and all future elections. Now, the state is bringing the sign-up process online, allowing voters to indicate their preferences for future ballots through a virtual portal. Like many other states, Jersey’s experience during the pandemic proved the workability and popularity of the system. “Following the expansion of vote-by-mail, we saw the need to implement common sense, modernizing reform allowing voters to apply for a mail-in ballot online,” Anthony Verrelli, the New Jersey assemblyman who cosponsored the latest voting bill, told me in a statement. “Requesting a mail-in ballot must be simple, easy, and accessible for all New Jersey voters.”

Yet even as these ideas are beginning to catch fire, so too are they becoming newly partisan, including in some states that were early adopters. In Michigan, grassroots organizers have placed a referendum question on the November ballot that includes the creation of a permanent mail-in ballot list—a provision Governor Gretchen Whitmer, a Democrat, has endorsed. Currently, Michigan, alongside Minnesota and Pennsylvania, allows any voter to join a permanent list to receive mail-in applications, not ballots, before election time, similar to what Skindell’s compromise bill would do in Ohio. But this people-powered initiative in Michigan ran into Republican intransigence. Michigan’s four-person Board of State Canvassers split on whether to allow the proposal to appear on the ballot. Both Democrats voted in favor, while both Republicans voted against––the same vote total as when the board was asked to allow an abortion rights initiative to appear on the ballot. The state’s supreme court stepped in and ordered that both measures be placed on the fall ballot.

In Arizona, the GOP-controlled legislature now wants to take away the permanent absentee list, which 75 percent of voters use. In May 2021, Governor Doug Ducey, a Republican, signed a bill that will allow the removal of voters from the permanent mail-in list if they do not vote over two election cycles. Arizonans attempted to rally for a ballot initiative that would repeal this bill, but legal challenges by conservative groups led the state supreme court to block the referendum. Conditions could soon get even worse, since two prominent Republican candidates, both 2020 election deniers, are openly attacking mail-in and early voting: Kari Lake, who is running for governor, and Mark Finchem, running for secretary of state.

The battle in Arizona illustrates Republicans’ plans to not only resist potential reforms but also erode established ones—revealing a clear disdain for an active, included, and informed electorate. Yet Republicans have chosen—to their own detriment—to swim against the tide of public opinion. The popularity of voting by mail generally, and single sign-up in particular, is clear from how many voters choose to take advantage of it when they’re afforded the opportunity. And once voters grow used to a so-called entitlement—Obamacare, for example, or the constitutional right to an abortion—they are loath to give it up. Once again, Republicans are putting themselves in the unpopular position of being the party that takes rights away.

The post The Newest Democratic Fight to Make Vote by Mail Easier appeared first on Washington Monthly.

It’s hard to imagine, given the right wing’s freak-out about vote by mail, but when the Washington Monthly first championed the idea a decade ago, the biggest pushback we got was from the left. Democratic operatives assumed that mailing every registered voter a ballot would advantage the GOP because most voters who utilized absentee ballots were right-leaning. Republicans were not full-throated fans of the idea, but neither were they hostile. Quite a few red states in the 2000s and 2010s made mail voting easier. 

Beginning in 2012, the Monthly published a series of stories—many by contributing editor Phil Keisling, who pioneered vote by mail as Oregon secretary of state—to persuade progressives that their worries were misplaced. Vote by mail, we argued, not only boosts overall turnout, which is good for democracy generally; it does so disproportionately among low-propensity voters, especially young ones, whom Democrats most need to mobilize. And while there are plenty of low-propensity white working-class Republican voters, too—which is why studies show that vote by mail doesn’t advantage one party over. another—it was in the Democrats’ interest, we said, to catch up with Republicans by reforming electoral laws and procedures to get more mailed-out ballots in the hands of their voters. 

Slowly, our efforts began to bend the curve of progressive opinion—especially after Keisling and I helped found the nonprofit National Vote at Home Institute to provide full-time research and bipartisan advocacy for the idea. By 2020, Utah (a red state) and Hawaii (a blue state) had joined Oregon, Washington, and Colorado in instituting universal vote by mail, as had 15 counties in California. 

But what hypercharged the issue was the coronavirus pandemic. Suddenly, the prospect of polling places as disease vectors swept away any lingering partisan doubts among Democratic officials. Plenty of their GOP colleagues felt the same way.

But one prominent Republican did not. On March 30, 2020, with the pandemic shutting down the economy and polls showing him likely to lose to Joe Biden, Donald Trump made the first of what would become a torrent of lies about efforts to expand vote by mail. For instance, he claimed they would end the Republican Party and lead to massive fraud—lies Russian propaganda repeated. His own campaign manager warned Trump that bad-mouthing vote by mail could hurt his reelection chances by scaring Republican voters from using it. But it soon became apparent that Trump’s real game was to lay the groundwork for denying the election results should they not go his way—which, as we now know, is precisely what he did.

Trump’s gambit to stay in office didn’t work. But his attacks on vote by mail drove a reverse polarization of the issue. Republicans took a dimmer view, Democrats a brighter one. Over the past two years, GOP-controlled states have made it harder for citizens to vote by mail and blue states have made it easier, as Prem Thakker reports in this issue (“The Newest Democratic Fight to Make Vote by Mail Easier”). 

Even more alarming is what Trump’s vilification of vote by mail did to the minds of GOP officials. In the days leading up to January 6, 2021, many House Republicans were groping for a way to back Trump without supporting his bogus claims of election fraud. As The New York Times recently reported, a low-profile Louisiana Republican, Representative Mike Johnson, provided them with a solution: insist that the expansion of vote by mail in key states had not been approved by their legislatures and was therefore unconstitutional. Legal experts, including the House GOP leadership’s own lawyer, determined that Johnson’s argument was spurious. Yet about three-quarters of the 139 House Republicans who voted against certifying the election relied on his claim. 

The basis of his argument, the “independent state legislature” theory, posits that no state body, including its courts, can restrict state lawmakers’ powers to set voting rules. The Supreme Court will test the hypothesis this session. Though there is “literally no support in the Constitution” or anywhere else for the theory, says the conservative legal scholar J. Michael Luttig, four of the six conservatives on the Supreme Court have flirted with it. Should they codify the theory, it would open the door to state legislators picking electors in defiance of the will of the voters. 

As Monthly legal affairs editor Garrett Epps argues in his cover story (“The Court’s Third Great Crisis”), the case is part of an attempt by the Court’s conservative supermajority to “govern the country from the bench” in the service of one political party. This has happened twice before. The last time, it prompted Franklin D. Roosevelt to try to pack the courts. The first time, it precipitated the Civil War.

The Monthly began its crusade for vote by mail believing that it would boost voter turnout and strengthen democracy. We never imagined that authoritarians would hijack the issue to circumvent democracy. But as we reported in August, new research confirms that vote by mail increases turnout even more than most experts had thought. That increasing participation offers hope because, as Epps explains, only the voters can demand the changes that can deter the Court from its destructive course and set the country on the right path. 

The post The Vote-by-Mail Switcheroo appeared first on Washington Monthly.

In Washington, D.C., and 43 states, restaurants and other businesses with tipped workers are not required by law to pay the full minimum wage outright, a concession to the restaurant lobby that goes back decades. Instead, employers can credit a portion of a worker’s tips toward their obligation to pay minimum wage. But D.C. may soon join the small group of states—California, Minnesota, and Oregon among them—to eliminate this anachronistic system. This November, D.C. will vote on Initiative 82, which would gradually increase base pay for tipped workers over five years from $5.35 until it reaches the District’s regular minimum wage, currently $16.10.

D.C.’s dining scene, replete with celebrity restaurateurs and two dozen Michelin-starred restaurants, is one of the country’s most celebrated. But proponents of I-82 say the industry’s growth was built on an artificial labor subsidy that exploits workers. “Tips were intended to be an extra or bonus on top of a wage, not your primary source of income,” Saru Jayaraman, the president of One Fair Wage, the national organization leading this effort, says. “Fundamentally, what is wrong with the system is the employers are not paying for the cost of the labor.” Experts say the maddening unpredictability of wages from week to week makes long-term financial planning difficult for restaurant workers. “A system that’s built on customers’ whims for supplying the bulk of a person’s income just leaves a lot up to chance,” David Cooper, an economist at the Economic Policy Institute, says. Leaving pay to the vagaries of customers means that Black and female restaurant workers in Washington get smaller tips than their white and male counterparts.

Federal law requires employers to make up the difference between the tipped wage and the standard minimum wage if tips fall short, but a 2012 Department of Labor compliance sweep of nearly 9,000 restaurants found 1,170 tip credit infractions. A full 84 percent of restaurants had some type of labor violation. Workers attest to this. “Something you sign up for when you sign up for this industry is you know that not all of the labor laws are going to be honored,” Gillian Michalowski, a bartender at the downtown hotel bar Allegory, says. Simplifying the system by guaranteeing all workers the minimum wage up front would directly combat wage theft.

A poll commissioned by One Fair Wage, which is also running similar campaigns in Maine, New York, and several other states, found that 88 percent of D.C.’s tipped workers support I-82. Voter support, too, is high. 

But the interests arrayed against the initiative are formidable. The “No to I-82” committee, backed by the National Restaurant Association (NRA), a lobby group, spent months unsuccessfully suing to keep I-82 off the ballot, and a spokesperson with the campaign confirmed that they’ve exhausted all judicial means of stopping the initiative. But the fight is far from over: The committee has nearly 10 times as much cash on hand as the sponsors of I-82. High-profile restaurateurs like José Andrés are determined to see the initiative killed. “Now the focus really turns to a broader education campaign,” the campaign spokesperson said—a public relations blitz. 

Their case to voters will rest on the charge that a higher minimum wage would actually drive down workers’ earnings and hurt smaller restaurants. “You couldn’t really ask a business that has pretty low margins to all of a sudden scrape together an extra $500,000,” says Geoff Tracy, chair of the No to I-82 committee and the owner of the eponymously named Chef Geoff’s. “Service charges would have to offset those costs.” Few customers, he told me, would tip on top of a service charge, and workers would bear the consequences.

To veterans of this fight, that’s a familiar argument—and a notoriously effective one.

In 2018, a group of activists collected enough signatures to get Initiative 77, the first incarnation of I-82, on the ballot. For months ahead of the election, the NRA and other industry groups poured thousands into Save Our Tips, a so-called astroturf organization masquerading as a grassroots, worker-led campaign. Tracy’s service charge argument was its core premise. “You’d see signs up in every restaurant that said, you know, ‘Save our Tips,’ ‘Vote No on Initiative 77,’ stuff like that,” says Max Hawla, a D.C. bartender then working at Bar Charley, an upscale Dupont Circle mainstay. “No on I-77” earned endorsements from Washington politicians and celebrity chefs.

The Restaurant Workers of America (RWA), a small, mostly white group of bartenders opposed to I-77, made up another arm of this campaign. Their representatives authored an op-ed in The Washington Post and received favorable write-ups in BuzzFeed News and other publications. News outlets seldom mentioned their shady relationship with the restaurant lobby, or that the group was a poor representation of the D.C. restaurant workforce, which is majority Black and Hispanic and includes many servers and bussers who make little in tips. (At the time, tipped workers in D.C. averaged just $14.41 an hour including tips, and were three times as likely to be below the poverty line as the workforce as a whole.)

The  opposition campaign went to great lengths to reach workers. The preferred digital gathering spot for D.C. restaurant workers is District Industry, a private Facebook group that requires Washington-area residency for members. “Maybe a month and a half before the midterm election that year, a lot of content on that Facebook page started to really blow up against Initiative 77,” Hawla told me. Screenshots shared with the Washington Monthly show that this was driven in part by posts from out-of-state members of the RWA. For example, the RWA’s founder, Joshua Chaisson, who helped reinstate Maine’s tip credit in 2017 before arriving in D.C., posted regularly in the group that spring and summer.

The Vote No campaign unified owners, managers, and well-paid bartenders against I-77. It instilled a stigma against the initiative among workers. “They really fell for the closed-door arguments that management was feeding,” Ryan O’Leary, the lead organizer of I-82, told me. That included Hawla, a 29-year-old graduate of American University. “I was very staunchly against Initiative 77,” Hawla said. “I was convinced that if the tip credit went away, I would lose tips.” He assumed that what was best for restaurant owners was best for him. “I need restaurants to have a job,” he remembered thinking. “And the National Restaurant Association was ensuring that I’ll have one by defending restaurants.”

Despite the astroturf campaign, in June 2018 I-77 passed the ballot referendum, with overwhelming support from the city’s majority-Black wards. (Only wealthy, mostly white Ward 3 voted against it.) But D.C.’s NRA affiliate launched a furious counteroffensive to get the city council to repeal the measure. It worked: Three months later, the council chair, Phil Mendelson, whipped the votes to defy the will of the voters and overturn the measure. ​​His justification echoed the industry line. “What is most troubling is that a supposedly progressive initiative to benefit workers instead will hurt workers,” he said at a hearing.

D.C.’s failed campaign fit a familiar pattern. In November 2016, Maine voters passed a ballot measure to eliminate the tip credit. But the following June, the state legislature capitulated to lobbying pressure and repealed the measure, reinstating the tipped wage. In Michigan, before residents could vote on a 2018 ballot measure to eliminate its tipped wage, the state legislature took action, preempting a potential yes vote by increasing the state minimum wage to $12 before amending the law to keep the tipped wage at 38 percent of the standard one.

Hawla was glad to see I-77 overturned. But 18 months later, the pandemic upended his industry. Two-thirds of workers reported not receiving the full wages they were owed (including vacation and sick day payouts) before they were laid off. When restaurants began reopening, long-standing problems in the industry were magnified. “People were really not tipping well,” Hawla said. “More of the people who came out during reopen were shittier customers, because they were the customers who didn’t care about COVID.” Polls backed up what Hawla saw that year—nationally, 78 percent of all tipped workers and 88 percent of Black tipped workers said they received less than half as much in tips during the pandemic than before. Patrons punished servers with smaller tips when they were asked to comply with COVID guidelines, and rates of sexual harassment went up, as well.

Congress made unemployment benefits available for restaurant workers. But language barriers and immigration status made accessing those benefits impossible for many kitchen workers in particular. Margarita Crespo, a 47-year-old cook and kitchen manager at a Mexican restaurant in D.C.’s Shaw neighborhood, was one such worker ineligible for unemployment benefits. Crespo instead found the Restaurant Opportunities Center (ROC), an organization affiliated with One Fair Wage, which provided her with the resources to get by.

When she returned to work, her employer had switched to a takeout-only model. “We do all the work,” she told me with the help of a translator. “The front of the house is just, like, answering the phone.” This made it all the more frustrating that kitchen workers legally cannot share in the tip pool. If the tip credit was eliminated, she learned from ROC, that rule would end, and back-of-house wages would rise—a fact even opponents of eliminating the tip credit concede. Crespo recalled thinking that the debate over I-77 had largely ignored the “Black and brown people in the back of the house,” who stood to benefit as much as bartenders and servers. “We’re essential workers,” she said. “We’re part of this economy.”

In September 2020, Hawla attended a Labor Day rally hosted by ROC. “I remember they had signs that said, ‘Stop the Other NRA,’ ” he said. “You know, referencing the National Rifle Association.” Across the country, NRA lobbying had siphoned off most of the first federal restaurant pandemic package to national chains instead of independent restaurants, which shuttered in droves. It made the lobby’s fear-mongering about the mass closures and layoffs that I-77 supposedly would have caused for smaller establishments seem duplicitous. “Maybe they don’t have my best interests in mind,” Hawla remembered thinking.

Later that month, Hawla was visiting Seattle when he struck up a conversation with a bartender at a cocktail bar. Washington State is one of the seven states without the tip credit. “I asked the bartender, ‘How do you like not having a tip credit?’ ” Hawla told me. “And he said, ‘What’s a tip credit?’ ” Hawla explained the concept. “He just went, ‘That sounds so stupid.’ ”

Hawla learned that the bartender’s higher base pay meant that his total wages after tips were much higher than Hawla’s own. The Seattle bar didn’t have any kind of service charge, and tips remained reliably high. “That moment, I was like, ‘Holy shit, I’ve been lied to,’ ” Hawla said. When organizers announced the petition that would become I-82, Hawla signed it.

In fact, a 2018 study found that Seattle bartenders and servers make 7 percent more per hour than those in D.C. Nationally, median hourly wages including tips are about 20 percent higher in states without the tip credit. Tipping in states across the country varies little—between 15 and 17 percent—and is only minutely higher, on average, in states with the tip credit, though D.C., at 14.9 percent, has the second lowest tip percentage in the country.

Likewise, it’s unlikely that I-82 would mean the sudden spread of the tip-killing service charges or the layoffs employers warn about. “There has never been any state in which a raise in tipped workers’ wages has resulted in a majority of restaurants switching to service charges,” One Fair Wage’s Saru Jayaraman told me in an email. Growth in the number of full-service restaurants in universal-wage states has typically tracked or exceeded that in states with the tip credit, which Cooper, the economist, attributes to less turnover and greater productivity among better-compensated workers. And a study on 20 years of changes in tipped wage policy throughout the country found “small, insignificant effects of the tipped wage on [full-service restaurant] employment.”

Rather than close their doors or lay off half their staff, restaurants in D.C. will likely do what they always do: adapt. “When the cost of anything goes up, outside or excluding labor, you never hear this complaining and bemoaning from business owners,” O’Leary, the I-82 organizer, told me. “They make it work. Price of meat goes up, you have more vegetarian options.”

Many high-earning bartenders still oppose I-82. “You are able to make as much money as you are able through your ability, your knowledge, your passion, your work ethic as a tip worker,” says Zachary Hoffman, a D.C. bartender and manager who helped organize the Vote No on I-77 campaign. “It’s worked for me. It’s worked for thousands of other people.”

But it hasn’t worked for everyone.

Nearly 1 million restaurant workers never came back to the industry after the start of the pandemic, including 18,000 in D.C.—an exodus years in the making. “Finally, workers are, in this very historic way, saying, ‘I’m done,’ ” Jayaraman said. “ ‘That’s it, I am not going to put up with this anymore.’ ”

Black workers have left the industry at three times the rate of their white counterparts. Debbie Ricks, a veteran server in D.C., told me that by March 2020, she’d put up with disrespectful customers for years. “I’ve definitely waited on white people who you could tell it was like, ‘We kind of wish our waitress was white or blond,’ ” she said. “Customers were just a huge drain on my soul.” At one restaurant, an assistant manager confided that the house had been taking a portion of the tip pool. Ricks, 44, was working at the ping-pong bar SPIN DC when COVID hit and the staff was furloughed. “It wasn’t until 2020, when I lost my job, when it kind of became a wakeup call for me,” she told me. She never went back. “I have a right to self-preservation,” she explained.

The swing of the pendulum toward labor having more bargaining power—restaurants’ need for staff is far more desperate today than in 2018—could give the initiative’s supporters the upper hand. Already, One Fair Wage counts more than 130 restaurants in D.C. that now voluntarily pay tipped staff at least the regular $16.10 minimum wage in order to attract workers. Most city councilmembers, including Mendelson, say they won’t repeal I-82 if it prevails in November. 

This year will be a decisive juncture for this movement: The tipped wage is also back on the ballot in Portland, Maine, and a court ruled that Michigan’s universal minimum wage will be reinstated this winter. “All three places that were taken away from us in 2018, we’re winning in 2022,” Jayaraman said. “This is a moment of redemption, not just for D.C., but for all the places that won it and it was taken away unconstitutionally, undemocratically.” 

Workers share her optimism. Hawla sees a new interest in change compared to 2018, even among the cocktail bartender crowd. “We’ve all kind of come out of the lie we were living,” he said. He’s begun talking to colleagues about I-82 and appeared in a recent promotional video.

I-77 had barely registered to Ricks in 2018, but after finding work as a freelance photographer for ROC, she helped the group collect signatures for I-82. “People deserve higher wages,” she said. “It kind of takes away some of the power of customers who feel like, ‘I own you because I’m paying your wage.’ ”

Crespo, the cook who could not access unemployment benefits, described feeling energized by the movement for I-82. “What we want is respect and dignity for workers,” she told me. “I’m fighting for my friends, I’m fighting for my coworkers.” More than ever, when she sees exploitation at work, she feels empowered to step in.

“I know that I’m right,” she said. “And I know my rights.”

The post The Tipping Point appeared first on Washington Monthly.

As the historian Richard Hofstadter once observed, the alarming thing about American politics isn’t that most believers in conspiracy theories are crazy. It’s that they aren’t. “It is the use of paranoid modes of expression by more or less normal people that makes the phenomenon significant,” he wrote. Hofstadter’s theory may sound like a description of Donald Trump and his followers, but it was, of course, written much earlier—in 1964, about the encroaching paranoia in American politics expressed by the presidential candidate Barry Goldwater, who infamously declared in his acceptance speech that “extremism in the defense of liberty is no vice.” Goldwater’s candidacy ultimately flamed out, but the passions and hatreds he inspired have only grown. Now more than ever, the Republican Party has become the vehicle for an assault not only on liberalism, but on American democracy itself. 

In the present day, the GOP’s delusions have become so pervasive that even former party stalwarts such as Liz Cheney have ended up as lonely dissidents, reduced to hoping that some sliver of sanity can be retrieved from the wreckage to rebuild the party. Even the events of January 6, 2021, proved no more than a speed bump for the Trumpian project, whose adherents are exploiting it as a kind of Beer Hall Putsch moment to double down on purging the GOP and ensuring fresh fealty to the former guy. 

In his excellent new book, Weapons of Mass Delusion, Robert Draper does not delve into the GOP’s past predilection for extremism. At most, he intimates in his introduction that in writing about the Republican Party over the past two decades, he may have been overly influenced by the example of his late father—a former Marine, capitalist, family man, and lifelong Republican—to view the party with a degree of respect it has not merited. Such an upbringing has only augmented Draper’s current consternation at the GOP’s conversion from a party into a Trumpian cult. Now Draper illuminates the enduring grip of the paranoid style in the party—and Trump’s ability to gull his followers—by focusing on the aftermath of January 6. Draper, who is a contributing writer for The New York Times Magazine, focuses on far-right House Republican firebrands such as Paul Gosar, Marjorie Taylor Greene, and Lauren Boebert. He has traveled widely across America to interview both them and their followers. What distinguishes his account from a number of new books about the GOP—including Dana Milbank’s The Destructionists, which traces the rot in the party to the ascension of Newt Gingrich in 1992, and David Corn’s American Psychosis, which emphasizes the long-standing tradition of conspiracy-mongering in the Republican Party—is his firsthand reporting. In recounting the saga of the GOP after January 6, he explains how and why it continues to prostrate itself to Trump. 

Draper sets the stage for January 6 by highlighting a number of instances of right-wing violence that presaged it. One arrived on December 4, 2016, when a heavily armed 28-year-old man named Edgar Maddison Welch drove from North Carolina to attack a pizzeria in Northwest Washington, D.C., called Comet Ping Pong. The owner of the pizzeria, James Alefantis, had been mentioned in the emails of Hillary Clinton’s campaign chair, John Podesta, which ignited a frenzy of speculation about the pizza joint’s putative role in a pedophile ring led by Clinton. Welch, a devotee of 4chan, fired off several shots in the pizzeria as he searched for a torture dungeon that did not exist. He was arrested. No one was injured. The incident seemed faintly ridiculous at the time. But the lunatic mind-set that inspired “Pizzagate,” as it was called, never really went away. Indeed, almost a year later, an aspiring Facebook influencer instructed her followers about a new conspiracy website showing, she wrote, “that John Podesta is a pedophile and pizza gate is real.” Her name was Marjorie Taylor Greene.

Draper, who devotes much attention to Greene, is clearly fascinated by the improbable rise of this gym owner to household name, and the wanton disregard for truth that animated and propelled it. Greene’s explanation of her life, he writes, amounted to “an artisanal blend of truth, untruth, and omission.” He reports that her father, Bob, also had a penchant for exaggeration, claiming that he had been nominated for a Nobel Prize. Marjorie herself would assert that she had “run a hell of a successful construction company,” when in fact she ran a CrossFit Passion gym. By 2017, she had sold the gym, had a lot of free time on her hands, and tumbled into the world of internet conspiracies. She became obsessed with unlocking supposed hidden truths that elites were trying to conceal from her about the homegrown traitors, globalists, and communists who were trying to pervert America’s true destiny. Greene, who had declared that Muslims don’t belong in government and that George Soros was a Nazi, quickly became the “it girl” of MAGA World. The COVID-19 crisis became a star-making opportunity, tailor-made for her to peddle dangerous assertions, including that the virus was man-made and “not dangerous for non-obese people and those under 65.” She also introduced three articles of impeachment against President Joe Biden, whom she branded a “pseudo-dictator.” (Perhaps she thought it would have been better had he been a real one.)

As with more than a few Trump confederates who railed about a stolen election, the conspiracy theories and the grift ended up shading nicely into one another. Greene, for instance, blew off attending a Justice for J6 rally. An adviser to her told Draper, “What does it get her? It doesn’t get her more support. It doesn’t get her more fund-raising dollars.”

One rally she did attend took place at the Orlando World Center Marriott on February 25, 2022. It was held by the America First PAC, headed by the white supremacist Nick Fuentes, an admirer of Benito Mussolini. When Greene appeared, Russian President Vladimir Putin had just invaded Ukraine. Seconds before she took the stage, Draper writes, the attendees shouted, “Pu-tin! Pu-tin! Pu-tin!” in honor of the invasion. Greene’s appearance there amounted to a recruiting mission. Fuentes, Draper writes, “possessed something Greene and [Paul] Gosar both wanted: an energetic base of young right-wing Christians who craved a patriarch.”

If an uneasy mix of grift and ideological passion characterizes much of the MAGAverse, Gosar, who served as Greene’s mentor in Congress, seems like more of a right-wing purist. According to Draper, Gosar was a true believer long before the fictions he promulgates became widespread. In 2015, he was the sole legislator to refuse to attend the historic address of Pope Francis to Congress, condemning the pope’s “socialist taking points.” The August 2017 white supremacist rally in Charlottesville, Virginia, Gosar declared, was financially supported by Soros, who had “turned in his own people to the Nazis.” He was an early adopter when it came to the Big Lie. On November 4, 2020—the day after the election—he drove from Flagstaff to Phoenix, Arizona, where he walked through downtown in a navy jacket and jeans, clutching a white megaphone in his left hand. Several staffers and allies accompanied him. After he reached the county recorder’s office, Gosar shouted to several hundred assembled Trump supporters, “Patriots! They’re not gonna steal this election from us, are they?”

Gosar’s ad hoc protest has the distinction of being the very first “Stop the Steal” rally in America. His efforts did not stop there. On November 7, his chief of staff, Tom Van Flein, drove to a private airstrip several miles from the Phoenix airport where he and several others watched as men in suits loaded large boxes that they were convinced contained illegal ballots onto an airplane. (The Korean Air flight they recorded, of course, was never found to contain any ballots.) “As it would soon become clear,” Draper writes, “Paul Gosar’s suspicions were shared by tens of millions of conservative Americans. That their beloved Donald J. Trump might somehow be a historically unpopular president—one whose Gallup approval rating never topped 49 percent at any point during his four-year term—was a reality from which right-wing media and self-segregation had thoroughly buffered them.”

Why did the GOP sink to these depths? Draper offers some useful reminders of the lengths to which party elders went to connive at Trump’s criminal actions during his presidency, granting enough legitimacy to some of the earlier grifts and effectively ensuring that they were powerless to stop later ones. Consider Liz Cheney. It was none other than Cheney who spearheaded the defense of Trump as the Republican Conference chair during his first impeachment trial over Ukraine. She might have disapproved privately of Trump’s attempt to suborn Ukrainian President Volodymyr Zelensky as part of his scheme to win reelection, but she focused her fire on the Democrats, who Cheney stated “will be held accountable by history for what they are doing.” According to Draper, Cheney’s “condemnation of the Democrats was thoroughly consonant with Trump’s insistence that he was the victim of ‘the greatest witch-hunt in American history.’ ” It was Trump’s cavalier handling of the coronavirus pandemic, followed by his refusal to accept the results of the 2020 election, that prompted her to break with him. But the damage was already done. In essence, January 6 became a litmus test in the GOP that worked to Trump’s benefit. It was the ultimate indignity, signaling that a Republican was ready to put their conscience in a permanent blind trust on behalf of Trump.

Draper recounts that the morning after Michigan Representative Fred Upton voted to impeach Trump over January 6, he had breakfast with Arthur C. Brooks, the former president of the American Enterprise Institute. “You know, Fred,” the perennially optimistic Brooks said, “former presidents tend to fade away. It’s going to happen with Trump too.” Upton responded, “No, it’s not. Not with this guy. I still think he’s going to be our next nominee.” 

Whether he is the nominee in 2024 or not, Trump, like Goldwater, has fundamentally altered the Republican Party for years, if not decades, to come. The party’s candidates are aping his refusal to concede defeat, demonizing Democrats as an internal subversive enemy, and embracing a variety of hallucinatory conspiracy theories as the ticket to electoral success. In focusing on Trump’s enablers in Congress and elsewhere, Draper helps to show why the fringe became the center in the GOP—and why it isn’t going away anytime soon.

The post How the Republican Fringe Became the Mainstream appeared first on Washington Monthly.

The invocation of privacy is often a smokescreen for privacy-annihilating activities. Tech giants exploit consumers’ online privacy and civil rights, harvesting our intimate details for profit and imperiling our rights. The only privacy Facebook, Amazon, Google, and the like are interested in safeguarding is their own, pushing back on regulators under the guise of protecting “trade secrets.” 

For certain powerful men, too, privacy means keeping their misdeeds under wraps. The disgraced film mogul Harvey Weinstein benefited from what The New York Times has called a “protection racket,” or a “network of aggressive public relations flacks and lawyers who guard the secrets of those who employ them and keep their misdeeds out of public view.” Matt Lauer, who was fired from NBC News in 2017, had a button under his desk that conveniently prevented interruption while he had inappropriate relations with female employees. Women who fight back against assaulters often end up with an out-of-court settlement and a confidentiality agreement: a battening down of secrecy. All this cloak-and-dagger business gives privacy a bad rap—it’s a debased currency that licenses men to oppress women, monopolies to oppress consumers, and powerful people to guard their profits at the expense of everyone else. 

It didn’t have to be this way. The legal concept of the right to privacy has its origin in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren, in which the authors called for the legal system to protect the “right to be let alone” in the “sacred precincts of private and domestic life.” The article relied on a psychological insight: If information pertaining to an individual’s private life is made public, it can damage the person’s “estimate of himself.” As Brandeis and Warren wrote, individuals and society are harmed when “numerous mechanical devices … make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” (The definition of privacy was personal for Warren, whose brother Ned was openly gay. Journalists have speculated that his authorship of the article was in part motivated by a desire to protect his family from the sensationalism of the penny press.) Scholars have called the article “the foundation of American privacy law” and “one of the most famous law review articles ever written.” It gave women in the early 20th century the ability to use tort law to object to their images being used in films and ads without their consent.

How privacy torts morphed from a potentially liberatory tool into an overly narrow set of claims typically used in defense of the powerful—and how we might turn the tide—is part of the story that Danielle Keats Citron, a legal scholar and vice president of the Cyber Civil Rights Initiative, tells in her authoritative new book, The Fight for Privacy. Citron’s work arrives when conversations about digital privacy have reached a new pitch. According to the Pew Research Center, a majority of Americans think that the risks of personal data collection outweigh the benefits, and they support more regulation of what companies can do with their data. In Congress, a bipartisan group of legislators proposed a bill allowing users to opt out of targeted advertisements and sue internet companies that sell their data without their permission. And last month, the Federal Trade Commission announced the “Advanced Notice of Proposed Rulemaking,” which would build guardrails to protect consumer privacy in the U.S. Such provisions are long overdue. Yet there’s a shady grove of the surveillance economy that has received much less attention from lawyers and legislators: intimate privacy.

The Fight for Privacy beams a flashlight on this neglected area. “Intimate privacy” has been under-theorized as a legal concept; Citron provides much-needed elucidation. For her, the term is both a descriptive one—the set of norms around our intimate lives—and a normative one: “a precondition” to a meaningful life. It refers to “the extent to which others have access to, and information about, our bodies; minds; health; sex, sexuality, and gender; and close relationships,” and is, at heart, a “moral concept.” Citron’s book provides a legal pathway for securing our right to intimate privacy in the digital era and for recognizing that it is as crucial as our other civil liberties—no more, no less. With Roe v. Wade overturned and the potential for women’s intimate data to be used to investigate or prosecute potential abortion cases, such legal clarity is more urgent than ever. As Citron has noted in Slate, Dobbs v. Jackson Women’s Health Organization not only eviscerates federal protections for reproductive autonomy, but also “augurs a future where no aspect of our intimate life is ours … where every detail about our bodies, health, and relationships is amassed and sold.”

The Fight for Privacy builds on some of the arguments Citron made in her first book, Hate Crimes in Cyberspace, in which she argued that, just as we have moved from Web 1.0 (a read-only internet) to Web 3.0 (a space that offers online experiences tailored to our habits and preferences), cyberharassment and cyberstalking have evolved into what she calls “Hate 3.0,” a form of “personalized hate, as damaging as this new stage of the web aims to be productive.” She marshaled evidence showing the emotional harm that accompanies such online harassment: Post-traumatic stress, panic attacks, anorexia, and depression commonly trail victims. Compounding the emotional distress, victims often incur substantial legal fees and moving expenses, and pay higher out-of-pocket costs for doctor’s visits.

Since Hate Crimes was published in 2014, feminist writers and thinkers have spilled more ink on the topic of online misogyny. This year alone saw the publication of How to Be a Woman Online: Surviving Abuse and Harassment, and How to Fight Back by Nina Jankowicz, which notes that “to be a woman online is an inherently dangerous act,” and Joanna Walsh’s Girl Online: A User Manual. The publication of Jankowicz’s book illustrates the pervasiveness of online harassment. Around the book’s publication in April, the Homeland Security Department announced Jankowicz as the head of its new Disinformation Governance Board. Immediately, far-right influencers worked to discredit her, subjecting her to a bombardment of personal attacks, including comments on the far-right social network Gab promising to greet her with “Mr. 12 Gauge Slugs” and lamenting the lack of a group of trained assassins to kill her. The whole episode served to make the solutions that Jankowicz puts forth in her book for battling such sustained online abuse seem pallid. Using anti-doxing services like DeleteMe or taking a screenshot of an offending comment are stopgap measures that put the burden on the victim rather than the perpetrator of harassment. 

Citron’s new book makes an important intervention in the larger conversation about digital privacy and harassment. As she notes, the data justice crisis metastasized during the coronavirus pandemic. A government agency in Australia and the U.S.-based Cyber Civil Rights Initiative each noted an increase of more than 200 percent in cases of nonconsensual pornography. Citron notes that of the 50,000 deepfake videos posted online in 2020, about 95 percent placed unrelated women’s faces onto pornographic images.

Journalists and civilians in other countries—especially authoritarian “regimes—have also been targeted in retaliation for documenting human rights abuses, such as a journalist in India whose face was doctored onto porn clips that were “shared with nearly half of the phones in India” after she criticized Prime Minister Narendra Modi. Her home address and cellphone number were made public, and she received rape and death threats. She stopped writing. 

Citron centers the stories of women subjected to intimate surveillance, abuse, and violence, including a high school principal in New York City whose ex-boyfriend dispatched sexually explicit photos of her to the New York Post. After the tabloid published them, the principal was suspended for bringing “widespread negative publicity, ridicule, and notoriety” to the school and failing to secure her photos. Such reasoning is obtuse, as Citron notes: “According to this argument, if a shopkeeper’s safe is broken into by thieves, then the shopkeeper is to blame for not having a better safe.” 

In another case, a New York financial adviser surreptitiously recorded his sexual encounters with three different women. He then uploaded the videos to his YouTube and Vimeo accounts to share with friends. His sentence? Ten days of community service. 

For victims, such violations carry lifelong consequences. As Citron argued in Hate Crimes in Cyberspace, the internet is “a force multiplier”; it not only pushes some to act more violently than they would have offline, but also extends the life of malicious posts. Search engines instantly call up images created years earlier for a potentially limitless audience, used at the behest of cybermobs competing to be the most abusive. In the case of one individual Citron interviewed, “Anna” could not bring herself to start dating again two years after her ex-husband posted her intimate videos and photos on fake Facebook and Twitter accounts and sent them to her colleagues at the school where she taught. 

The internet is often referred to as a virtual Wild West, an ungovernable free speech zone. Citron holds no truck with that idea. Just as we have norms and rules for workplaces and public spaces, the internet should be subject to regulation. The detrimental effects of harassment do not cease to exist simply because a victim has logged off.

Citron singles out Section 230 of the Communications Decency Act for shielding social media companies from liability and providing a fig leaf for malefactors to “host posts by civil rights protestors, like members of the #MeToo movement, and child predators.” Section 230 reform is mostly associated with congressional Republicans, who suggest narrowing it to “protect free speech” by penalizing tech companies who supposedly discriminate against conservatives. But Citron believes that well-intentioned reform would tackle cyberstalking, excluding bad actors from the act’s safe harbor provision. 

Citron, who helped draft Maryland’s law criminalizing the nonconsensual publication of nude images, touts the notion, first articulated by Warren and Brandeis, of the “right to be let alone.”  She couples such legal evaluations with a need for greater algorithmic transparency, given that intimate data has been or can be used to feed self-harm videos to those whose anxiety and depression are worsening or reveal users’ sexual orientations to discriminatory governments or employers, for example. The more that algorithms are used to determine people’s eligibility for benefits, jobs, housing, credit, insurance, and other life necessities, the greater the need for transparency around such automated processes to correct for biases and disparate, discriminatory impacts inherent in these systems. 

In centering the original Brandeisian definition of a right to privacy, Citron hopes to bypass the abuses of privacy law by suggesting that lawmakers and lawyers hark back to its original intent. Some may find this unconvincing, or about as naive as Citron’s belief that with the right incentive structures in place, data brokers and advertisers can become “data guardians” rather than agents of espionage. While parts of her argument remain underdeveloped, Citron does prove that the legal tools available to victims—including tort and consumer protection laws—are anemic. They’re too narrow, requiring victims to prove that privacy invaders intended to harm, a notoriously difficult thing to demonstrate. More vexing still are networked technologies evolving at hyperspeed, so threats to intimate privacy outpace legal protections.

That victims seek civil redress—including “claims for negligence, breach of contract, unfair and deceptive actions, and breach of warranty”—and fail speaks to the need for “baseline protections for intimate privacy.” Citron makes sound suggestions, like upgrading cyberflashing (sending unsolicited sexually explicit images via text or AirDrop on Apple phones) and the nonconsensual exploitation of intimate images to felonies rather than misdemeanors. Plaintiffs should be able to sue under an alias (to protect their privacy) and get injunctive relief (in the form of removal, blocking, or de-indexing of nonconsensual images). Citron sensibly advocates for a “Do Not Sell My Intimate Data” registry, arguing too that individuals must obtain the digital equivalent of a “learner’s permit” from social media companies to use their sites. There would be an onus on companies to regularly remind users about the importance of intimate privacy and to follow up with “refresher courses.”

Ultimately, cyberharassment undermines equality of opportunity; it jeopardizes individuals’ ability to enjoy their lives, seek employment, go to school, and pursue other activities free from discrimination. All 50 states have laws on the books to protect online security, such as electronic health record protections and identity theft safeguards, and 48 have criminalized nonconsensual porn. California, Hawaii, New York, and Virginia have even made circulating deepfakes or digitally manipulated intimate images online a crime. This, Citron would say, is a good start, but we should aspire to broader protections for intimacy, in the vein of the Universal Declaration of Human Rights, which recognizes the “right to privacy” as fundamental. Rather than treating intimate privacy violations in a piecemeal fashion—which lends itself to a grab bag of weak statutes—criminal law ought “to treat the constellation” of these problems as one. The right to intimate privacy should be enshrined in a landmark federal online privacy law that would protect individuals against abusive practices. The hope is that enforcing it as such would have expressive value—it would give us a common language to talk about the importance of digital privacy. It would say to data brokers that dignity matters more than profits. It would tell government that the over-collection of data erodes equality. Such a law would thunder that intimate privacy is a right.

The post A Woman’s Right to Not Be in the News appeared first on Washington Monthly.