Reports from the trenches.

May 17, 2022

[Audio version here]

          In the next six weeks, the Supreme Court will issue an opinion striking down a New York law requiring a permit to carry a concealed weapon. That pre-determined result is evident from questions posed by the six conservative justices at oral argument last November. The ruling will invalidate similar restrictions across the nation. In short order, major American cities will revert to the status of frontier towns in the Wild West.

          On Monday, the six conservative justices ruled that the Constitution protects bribery under the guise of free speech. A wealthy politician can “loan” themselves unlimited amounts to campaign for office and then solicit “donations” to “repay” the loans after they are elected. There is no practical difference between bribery and an officeholder who solicits “donations” that go directly into the official’s pocket. The opportunity for abuse and corruption is manifest. The radical majority on the Court has struck another blow to the right of citizens to choose their leaders in free and fair elections. In short, money rules, bribery is legal, and votes don’t count. As Justice Kagan wrote in her dissent,

[W]hen a campaign uses a donation to repay the candidate’s loan, every dollar given goes straight into the candidate’s pocket. . . . It takes no political genius to see the heightened risk of corruption—the danger of “I’ll make you richer and you’ll make me richer” arrangements between donors and officeholders. . . It injures the integrity, both actual and apparent, of the political process.

          A modern democracy is being disassembled piece-by-piece by radical justices applying a nonsensical, simplistic, absolutist interpretation of the Constitution. The “textualist” and “originalist” approaches would shock the Framers, who believed they were creating an enlightened nation based on reason and the rule of law (with the notable stain of slavery). The reactionary majority has converted the Constitution into a destroyer of laws, a fulcrum of anarchy—the antithesis of the great charter of democracy envisioned by the Framers.

          The vestiges of legitimacy that cling to the Court are based on pomp and circumstance no longer befitting a rogue Court. Members of the Supreme Court bar bow and scrape before partisan ideologues masquerading as justices. One member of the Supreme Court bar has had enough. James Dannenberg is a retired Hawaii state judge who has been a member of the Supreme Court bar since 1972. He sent a letter to Chief Justice Roberts explaining his reasons for resigning. Referring to Justice Roberts’ claim during his confirmation hearing that he was merely “calling balls and strikes,” Dannenberg said, in part,

You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. . . . There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

          Many lawyers are members of the Supreme Court bar but have never argued before the Court and never will. They obtained admission to the Supreme Court bar as an honorific. Any lawyer who can resign in protest from the bar and not impair their ability to appear before the Court should do so. They should flood Chief Justice Roberts with letters that remind him he is destined to become another Chief Justice Melville Fuller, who presided over Plessy v. Ferguson.

Perhaps a flood of resignations will reach deep into Roberts’ limbic memory and resuscitate long-forgotten notions of fairness and justice that prompted him to pursue a career in law decades ago—before the Federalist Society convinced him that government is the enemy and promoting the common good is bad for profits.

Reports from readers on “Bans off our Bodies” protests.

          I heard from more than 100 readers who participated in “Bans off our Bodies” protests across the nation. The protests ranged in size from a handful of protestors at a busy intersection to massive, speaker-driven rallies in large cities. In some locations, the crowd was diverse in terms of age, sex, race, and backgrounds. In others, the protestors were almost exclusively white women in the 60s and 70s. Almost all protests were free from counter-protestors, although a few had anti-abortion agitators attempting to drown out the speakers. One venue experienced a scuffle between anti-abortion and pro-choice protestors.

          Most readers spoke of a sense of energy and determination that gave them hope that we will overcome this retrograde moment. Many took heart because their protests included young women and men taking the lead. A common refrain was that the media failed to cover the protests—even when local newspapers and television stations sent reporters to the event. But there were notable exceptions where local media provided coverage with multiple photos of signs and protestors.

          But . . Dozens of women wrote to say that they protested in the same venue they protested at more than fifty years earlier. That sentiment was bittersweet for some, and depressing for others. As one reader said,

The vibe (at least from my own perspective) was one of deep sadness, of utter dismay and anger; that, after FIFTY YEARS of settled law, of progress, of working towards individual rights and gender equality, this fight . . . that we thought was fought (and won!) so long again . . . is once again at our doorstep. We are tired and disheartened, but we will continue to fight.

          The above sentiments are understandable and appropriate. But note that the reader who said she was angry, sad, dismayed, tired, and disheartened “will continue to fight.” Bless the reader and everyone like her who refuses to give up despite those understandable feelings. We are at the bottom of a very steep hill that will take years to summit. Those who fought the original battle must now teach the next generation what it means to engage in a lifelong struggle.

          Several organizations are doing the heavy lifting in leading the way, most especially Planned Parenthood. (Support Planned Parenthood if you can.) DemCast USA on Mobilize.US has done a superb job collecting and organizing volunteer opportunities across the US. And Grandmothers for Reproductive Rights describes its members as “feisty, passionate, and powerful” grandmothers fighting to protect the rights of their daughters and granddaughters.

          This struggle is beginning anew. If you missed the rallies last weekend, there will be dozens of opportunities in the coming weeks to make your voices heard!

Social media’s complicity in the Buffalo mass killings.

          The white supremacist domestic terrorist who killed ten people in Buffalo live-streamed the event on a social media platform called Twitch. A Twitch user archived the video, then shared it on Facebook and Twitter, where the video executions of ten people have been viewed millions of times. It took Facebook nine hours to take down the video. Twitter initially said that the video did not violate its terms of service! Let me repeat: Twitter said that a video of the killing of ten people did not violate its terms of service. (Twitter later recognized that its position was grotesquely inhumane and removed the video.) See generally, Kotaku, Twitch Shooting Uploads Reach Millions On Facebook Streamable, and NYTimes, After Buffalo Shooting Video Spreads, Social Platforms Face Questions.

          It is not enough to remove the video or links to the video. Facebook, Twitter, and other social media platforms must delete the accounts of anyone who shared the video. Until Facebook and Twitter act as if they care about users sharing videos of people being executed by a domestic terrorist, their users will continue to share that content. And if the social media companies are not up to the task of moderating their platforms, Congress should do it for them or remove the protections of Section 230 of the Communications Decency Act.

Talking about white supremacists.

          Yesterday, I used the terms “white nationalists” and “white supremacists” more or less interchangeably. A reader noted that the term “white nationalist” was adopted by white supremacists to “soften” their image as racists and to wrap their white supremacy in the cloak of nationalism. See, e.g., How White Supremacy Returned to Mainstream Politics. The reader makes a good point: The fundamental doctrine of white supremacists is that of the superiority of the white race, and hiding that ugly premise under the guise of nationalism legitimizes white supremacy. Going forward, I will call white supremacists by the ideology that motivates them—an ideology that shares its roots with Hitler.

Concluding Thoughts.

          If I had the space, I would share the hundreds of emails I received from readers who participated in “Bans off our Bodies” protests over the weekend. The responses reveal a vast undercurrent of activism and determination under-reported by the media and under-appreciated by political pundits. It is impossible to read those emails without feeling renewed hope that Americans will respond when their liberties are threatened. Every protest mattered, especially the tiny gatherings in unfriendly territory. One reader wrote,

I attended a rally in Stuart, Florida where folks gathered on the Hwy 1 bridge over the St. Lucie River. It was tiny compared to the 2017 Women’s March in DC which I also attended but the feeling was the same: People were there to protest but were orderly, civil, hopeful and comforted by each other and by the honking responses of MANY passing vehicles. [The protest included] white-haired ladies like me, some pushing walkers, others hobbling on canes or sitting in wheelchairs with signs saying, “Still at it after 50 years.”

          To the “white-haired ladies” on the bridge over the St. Lucie River, you are a living demonstration of the words of Margaret Mead: “Never underestimate the power of a small group of committed people to change the world. In fact, it is the only thing that ever has.”

          We can’t romanticize the struggle. It will be hard, and it will take years or decades. But with the St. Lucie River band of activists leading the way, we cannot fail.

          Talk to you tomorrow!