Thank you for a job well done!

December 5, 2024

It was a rough day in the Supreme Court for anyone who cares about transgender kids, women, men, or people. In short, the reactionary justices on the Court seem poised to create an exception that will allow discrimination based on sex in cases involving healthcare. The rationale of the justices seemed to be that “healthcare is complicated” and “best left to the discretion of part-time legislators” in GOP-controlled states that have a lock on power through political and racial gerrymandering.

Before reviewing the specifics, let’s talk about the solution—and the missed opportunity. During the first two years of the Biden administration, Democrats could have expanded the Supreme Court to override the death grip of the reactionary majority. Democrats controlled the House, the Senate, and the Presidency from 2021 to 2023. Expanding the Court required only the passage of bill by a majority vote in both chambers of Congress (and creating a carve-out in the filibuster, which requires only a majority vote).

But calls to expand the Court were met with disbelief and horror. Opponents warned that expanding the Court would “undermine its legitimacy.” That quaint notion was demolished by rulings in cases like Dobbs (overruling Roe v Wade), Trump v. US (fabricating presidential immunity out of whole cloth), Bruen (concealed carry of handguns in public is a universal right), Bremerton (okay for football coach to lead public school athletes in prayer at midfield after games), Cargill (a bump-stock rifle that can fire 13 rounds per second is not a “machine gun”), and Snyder (bribes given as “thank you gifts” are not illegal). (List is not complete; feel free to add others in the Comment section.)

During the two-year period when Democrats had a trifecta in Washington, they suffered from a lack of imagination. They could not imagine that the Court would take a wrecking ball to the US Constitution and the rules of judicial interpretation and restraint. Lesson learned.

Democrats will regain a trifecta. When they do, we must not waste a moment worrying about the “legitimacy of the Court.” Like Elvis, it has left the building, and it isn’t coming back. We must never again allow a lack of imagination about the depravity of the Republican Party to detain us.

Sadly, the religious and cultural biases of the reactionary majority were again on display during arguments in US v. Skrmetti. The facts are straightforward: Tennessee has outlawed the use of certain medications for use by transgender youth. The law plainly discriminates on the basis of sex because those same medications can be used by other minors who are not seeking to transition or affirm their gender. See generally Ian Millhiser in Vox, The horrifying implications of today’s Supreme Court argument on trans rights, in US v. Skrmetti.

Under existing precedent, laws that discriminate based on gender are subjected to a higher degree of judicial scrutiny to determine if they violate the Equal Protection Clause. Under settled law, the Tennessee ban should be subjected to heightened scrutiny. But the reactionary justices seem intent on allowing the Tennessee ban to escape heightened scrutiny (and thereby remain on the books). Accordingly, four justices seemed willing to create an exception to the heightened standard for cases arising in the “medical context.”

What could go wrong? I mean, it’s not like the reactionary justices are relying on the views of witch-burning judge from 17th-century England (as they did in Dobbs). In fact, the reactionary justices seemed inclined to follow selected European laws dealing with transgender youth rather than the US Constitution as interpreted by the Supreme Court.

As explained by Ian Millhiser, Justice Roberts led the charge in suggesting that there should be a “carve out” to the heightened scrutiny standard of review for sex discrimination in the medical context:

If the Court adopts Roberts’s approach, which seems likely, that’s not just a devastating blow to transgender youth and their families. It’s also a sea change in the Court’s approach to sex discrimination of all kinds.

Again, [previous cases] held that “all” laws that draw lines based on sex must survive heightened scrutiny, even though some laws ultimately clear this hurdle. “All” means all. But now many of the justices seem eager to hold that only some laws that classify people based on sex are presumptively unconstitutional.

The Republican attempt to legalize discrimination against trans people begins with its assault on the equal protection of trans youth. Again, as Millhiser notes,

It’s hard to divorce this case from its political context. During his recently victorious presidential campaign, President-elect Donald Trump went all in on anti-trans rhetoric — spending literally hundreds of millions of dollars on ads that, in the Washington Post’s words, “paint trans people as a menace to society.”

Republicans are discriminating against transgender youth because they can and because it is a wedge issue that will lead to additional areas of sex discrimination. Such discrimination is one of the last bastions of “acceptable” discrimination in America. The reactionary justices are poised to “aid and abet” in that discrimination by refusing to subject it to the heightened scrutiny that is applied to all other forms of sex discrimination.

As with reproductive liberty, the reactionary justices will wrap their complicity in the claim that they are “sending the issue back to the peoples’ representative.” But other constitutional rights do not blink in and out of existence depending on a person’s residence. That is precisely why we have a federal constitution—to ensure that there is a supreme law of the land not subject to the vagaries of state legislators who choose their voters (through gerrymandering) rather than being chosen by voters.

It was a tough day. We must never again suffer from a lack of imagination. And that lesson should be applied to every situation where Democrats have an advantage—no matter how transitory or narrow.

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Recognizing the Democratic achievement in the House

The Supreme Court has blessed the use of political gerrymandering to make it nearly impossible to dislodge incumbents. Republicans have pushed gerrymandering to the extreme, thereby bestowing on themselves a “built in” unfair advantage in the House arising from red-state gerrymandered districts. See David Daley in Salon, How Republicans held the House: It's the gerrymander, stupid.

Per Daley,

Republicans’ margin of victory [in the US House] was just three seats, and their working majority as the next term begins will be almost nonexistent.

As it happens, three seats is exactly the number that Republicans engineered in their favor this cycle in North Carolina, as the result of an extreme gerrymander gifted to them by that state’s Republican-controlled Supreme Court.

The fact that Democrats clawed their way to 215 seats is an achievement to be celebrated—not the badge of shame portrayed by many commentators. Readers forward articles to me daily that explain “what Democrats did wrong” or “why Democrats lost.” Nearly 100% of those articles adopt the “just so” story that Democrats lost because they stopped listening to the working class (a falsehood so egregious I will not repeat the obvious response, but instead direct critics to any and every campaign speech delivered by Kamala Harris).

One grassroots organization sent a newsletter that said that Democrats “must have made mistakes” because “we lost.” As framed, that syllogism is false. Democrats could have (and did) run a sound campaign but lost, nonetheless. See, e.g., gerrymandering in the House, described above.

I am not saying that Democrats are perfect or can’t improve or are blameless in the 2024 losses. But the handwringing and gnashing of teeth by Democratic political commentators are out of control. Predictably, every “what went wrong” article miraculously validates the author’s worldview and prior (successful) campaign experience (usually on the Obama campaign).

With apologies for that detour, let’s get back to my thesis: Democrats have every reason to be proud of their accomplishment in increasing their representation in the House in the 119th Congress, which starts on January 6, 2025. The Democratic success in the 2024 election has saddled Speaker Mike Johnson with the smallest House majority in history.

Let me repeat: “The smallest House majority in history.”

See NYTimes, Mike Johnson’s Newest Headache: The Smallest House Majority in History. (This article is accessible to all.)

Despite being in the minority in the House, Democrats are in a strong position. I recommend reading the NYTimes article above to understand the details of the Republican majority’s predicament, but here is one example:

The relief from the budget ceiling negotiated by President Biden expires in January 2025. Republicans want to extend the 2017 Trump tax cuts as their first order of business in January 2025—a move that will raise the debt unless Republicans create new sources of revenue (i.e., “raise taxes”) or slash spending. Cutting spending is easy to talk about but hard to do when your ox is being gored by cuts to services or projects important to your constituents.

It seems unlikely that Republicans will be able to pass any spending bills without Democratic support. That outcome is a direct result of the countless hours and tireless work of Democratic grassroots volunteers.

No one will thank you or even think of you when the bigwigs are negotiating in the halls of the Capitol or sitting uncomfortably on the awkward couches in the Oval Office. Still, you are the reason Democrats will have a seat at the table. Every vote cast, every ballot cured, every door knocked, every postcard sent, and every phone call made is directly responsible for Democratic power in the 119th Congress.

So, rather than blaming “Democrats” for their imagined arrogance or manufactured “mistakes,” we should thank them for standing up to Trump and MAGA extremism. We still have a dog in the fight and a seat at the table because of you.

Since precious few other commentators are saying what should be said, I will say it:

Thank you for a job well done.

Democrats who volunteered their time and donated their resources are true heroes of democracy. Your nation will forever be in your debt for a job well done. And your reward is that you get to do it all over again, starting yesterday.

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Opportunities for Reader Engagement

Join me on Monday, December 9 at 4:00 pm Eastern / 1:00 pm Pacific as I moderate a discussion with All in for NC, which will include a look at the outcome of the 2024 election in North Carolina.

I will host a discussion with Jessica Laurenz, Executive Director of Put NC First, and Anderson Clayton, Chair of the North Carolina Democratic Party. We will also hear from two new members of the North Carolina legislature, Dante Pittman and Beth Helfrich.

Sign up here: Preliminary Election Evaluation - All In for NC .

Despite the outcome at the top of the ticket, there is reason to celebrate victories in North Carolina at the statewide and legislative level. Join me as we reflect on lessons learned.

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Concluding Thoughts

It bears repeating: Thank you for a job well done!

Feel free to spread thanks to others who toiled in obscurity with no expectation of reward or recognition. They will deeply appreciate acknowledgment.

On behalf of my family, especially my daughters and grandchildren, thank you for helping to preserve democracy for the next generation.

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Daily Dose of Perspective

The waxing crescent moon was low in the sky on Wednesday evening, so I switched to my smaller telescope / camera setup, which is capable of managing the brightness of the moon. (Less light gathering capability=better photos of bright objects.)

I watched the moon landing in 1969 in my great-aunt’s living room in Visalia, California. She was 18 years old when the Wright brothers achieved powered flight in 1903 and was 84 years old as we listened to Walter Cronkite comment on the NASA feed as the astronauts landed on the moon. See the YouTube video of the last four minutes of the landing, here: Apollo 11 moon landing leaves Walter Cronkite "speechless".

Progress seems excruciatingly slow—until it is not. The moon should remind us that rapid progress is not only possible—it is the rule when viewed from the right vantage. Keep the faith!