PBS "Frontline" Documentary "Age of Easy Money" Shows Perils in Relying On the Federal Reserve to Make Economic Policy

r>by Mark Gabrish Conlan • Copyright © 2023 by Mark Gabrish Conlan • All rights reserved

Last night (March 14) at 9 I watched a PBS Frontline documentary called “Age of Easy Money” on the “streaming” channel, since it was scheduled to begin at 10 p.m. but I wanted to be able to watch it an hour earlier so there’d be nothing in the way of my husband Charles and I watching the Stephen Colbert show once he got back from work at 10:45 p.m. I think “Age of Easy Money” was produced before the recent collapse of Silicon Valley Bank in early March, but they stuck an introductory tag in the program to cover it. The main focus of the program was in the Federal Reserve in general and its chair, Jerome “Jay” Powell – a Donald Trump appointee whom Joe Biden inexplicably reappointed in late 2022 as his term was about to expire – in particular. The Federal Reserve was created in 1913 by an act of Congress and signed into law by then newly elected President Woodrow Wilson. Its main purposes were to stabilize the U.S. currency and maintain economic growth, including both low unemployment and low inflation. Only it was set up in such a way that bankers would be in charge of it, and bankers in general prefer low inflation to low unemployment because they don’t want their loans repaid in dollars that aren’t worth as much as they were when they lent them in the first place. In order to avoid the perception that the Fed (as it’s universally nicknamed) would be a tool of the political branches of government – heaven forfend that the government actually have a hand in running the economy! – the Fed was deliberately insulated from political pressure as much as possible, Though its president would be appointed by the President of the United States, the Fed president’s term was deliberately staggered so it didn’t expire until two years after the presidential election, so the new President couldn’t immediately install his own person as head of the Fed.

What’s more, instead of being a part of the U.S. Treasury Department so the Fed’s monetary policies could be coordinated with the rest of the government’s fiscal policies, presenting the quite frequent situation of the administrative branches and the Fed pursuing policies at cross-purposes with each other. The Frontline documentary began with the 2008 economic crisis, though the Fed’s power to undermine the decisions of the political branches of government is an old problem. In the late 1970’s then-Fed chair Paul Volcker ran such a tight ship on monetary policies, making interest rates so high he virtually strangled the U.S. economy. According to Garry Wills, historian and Presidential biographer, Volcker’s tight-money policies made it virtually impossible for Jimmy Carter to win re-election and handed the country over to Ronald Reagan and the extreme Right, with consequences we’ve been suffering ever since. After the 2008 economic collapse, the Fed invented something called “quantitative easing,” in which the Fed would not only buy the mortgage-backed securities whose downfall had tanked the U.S. economy in the first place, they would buy U.S. Treasury bonds and other financial instruments from private banks. The idea was that the Fed would flood the banking system with cheap money, which the banks would then use to make loans that would stimulate economic growth by actually investing in goods and services. Instead the banks used the money to buy more securities, which they then sold back to the Fed, making quick and easy profits without doing anything and without having to take the risks of actually loaning money to invest in economic production. The show begins with the annual conference of world central bankers in Jackson Hole, Wyoming in August, and the 2022 speech by Jerome Powell.

It seems that this has become an annual ritual in which, because the U.S. economy is the world’s largest and the U.S. dollar is the world’s reserve currency (a fact that has shielded us from the consequences of our overall economic stupidity for decades), central bankers, government officials and the rest of the world waits with bated breath for what the Fed chair says about his upcoming economic policies. In August 2022 Powell said he was committed to reducing the inflation rate to 2 percent (the Fed’s official target) by continuing to raise interest rates after a decade of historically low ones, no matter how much “pain” – a word he repeatedly used – this caused to the rest of the economy. Since the “pain” would involve throwing millions of people out of work and a long-term dampening of economic growth, quite likely driving both the U.S. and the world economy into a recession (or even, as one particularly pessimistic interviewee on the program suggested, a depression) and doing to President Biden’s re-election chances what Paul Volcker did to Jimmy Carter’s. In between the show focused on the reaction of private investors, especially Wall Street, to any hint from the Fed that they were going to stop the age of easy money by jacking up interest rates. On at least two occasions between 2010 and 2020, hints from the Fed that they were going to hike interest rates and thereby choke off the flow of easy money led to massive drops in stock prices.

Just as the Fed had responded in 2008 to the economic crisis by flooding the banks with new capital, only to find that they were using it either to buy more securities to sell to the Fed or just pocketing the money themselves in the form of higher salaries and bonuses for their top executives, so in the late 2010’s corporate leaders took advantage of low interest rates to borrow money not to increase their productive capacity and put more people to work. Rather, they borrowed money to invest in buybacks of their own stock, with the idea of not only consolidating more and more corporate ownership into their own hands but also jacking up the price of their companies’ stock, since according to the law of supply and demand, every time you decrease the supply of something (whether canned goods or stock shares), their price goes up. One of the worst phenomena of late-stage capitalism has been the obsession with stock prices as the measure of how much a company is worth. I remember reading a book on recent financial history in which the disastrous merger of America Online and Time Warner was discussed, and the part that stuck with me was when a Time Warner board member asked why, when his company would be contributing 85 percent of the combined firm’s total revenue, their shareholders would be getting only 45 percent of the combined company’s stock. The answer he got was that AOL’s “market cap” was that much higher than Time Warner’s.

“Market cap” – short for “market capitalization” – is a ridiculous measure of a company’s value that has become all the rage in recent decades. It simply means the total number of stock shares in a company multiplied by the price of its stock per share, Reliance on “market cap” as the measure of how well a company is doing means encouraging its managers to do whatever it takes to bid the stock price up, including making highly speculative investments that will cause “bubbles” in the stock price per share. Of course, I couldn’t help but watch “Age of Easy Money” through my life-long anti-capitalist lens, and there was a reference in the program to Aesop’s fable of the frog and the scorpion – the scorpion convinces the frog to take it across the river,the frog is reluctant because he’s afraid the scorpion will bite and kill him, the scorpion says I wouldn’t do that because then we’d both die, then the scorpion takes in the frog’s back, they start across the river and midway over the scorpion stings the frog. The frog asks why the scorpion did that and doomed them both to drown, and the scorpion says, “I couldn’t help it – it’s just my nature!” It’s accordingly in the nature of capitalists to do absolutely stupid short-term things in pursuit of an immediate profit no matter what that does to the economy long-term. The only way to control them is by effective government regulation.

In this case, the political branches of government and the Fed should have come together to ensure that loose money would be used in a socially productive fashion. They could have put controls on the cash the Fed flooded the private banks with in 2008 and again in the late 2010’s so it would have been used for the kinds of productive, job-creating investments the Fed wanted to encourage. Instead, with a Republican Party so in thrall to the maxims of laissez-faire capitalism and a Democratic Party that has largely abandoned the working class in pursuit of big-money corporate donors, no solutions that might have actually reined in the power of private businesses to do what’s in their nature were politically possible. “Age of Easy Money” ends with Mohamed El-Erian, president of Queens’ College, Cambridge and chief economic adviser to the hedge fund Allianz, taking the political system to task for not addressing the real problems with the American economy: “The world of easy money went way too far. Way, way too far. Let's do the other stuff that's needed. The stuff that really promotes genuine, durable, inclusive growth and not this stuff that creates artificial growth. We are capable of producing that. None of that is in the hands of the Fed. They don't invest in infrastructure. They can't reform the tax system. They can't help labor retraining. This is a political problem.”

The story of the American economic and political system over the last 15 years is replete with missed opportunities, including one specifically mentioned in “Age of Easy Money” – the failure to address America’s crumbling infrastructure during the Trump administration, when interest rates were historically low and the costs of borrowing money to repair it would have been quite cheap. Instead Trump’s repeated declarations of “Infrastructure Week” became a recurring nationwide joke and it was left for President Biden actually to steer an infrastructure bill through Congress. But to me one of the worst missed opportunities was the rise of the Right-wing pseudo-populist “Tea Party” movement in 2010. Instead of a mass anti-capitalist movement we got a revenge-driven campaign of hate for alleged “elites” that handed control of Congress to the anti-labor, openly pro-capitalist Republicans and set the stage for the anger-fueled campaign of Donald Trump and the hatred, mostly directed against women, people of color and Queer people, that has dominated our politics ever since.

MS-NBC Documentary "Ukraine's Secret Resistance": A Moving Tale of Courage – and Torture

by Mark Gabrish Conlan • Copyright © 2023 by Mark Gabrish Conlan for Zenger's Newsmagazine • All rights reserved

On February 24 at 7 and 10 p.m., MS-NBC showed a quite remarkable documentary called Ukraine’s Secret Resistance, hosted by NBC News foreign correspondent Richard Engel and featuring profiles of four individuals who became part of the partisan resistance in Kherson, Ukraine’s second-largest city and one of the earliest targets for the Russian invasion of Ukraine (which started one year ago yesterday) because it lies only 25 miles from Ukraine’s border with Russia. The show profiled four resisters: Vladyslav “Vlad” Nebolstup, Nastya Burlak, Mykhailo Kuanov and a 17-year-old identified only as “Sergei.” Their stories of resistance eerily paralleled the ones we’ve heard of people similarly organizing resistance networks against Nazi occupatioin during World War II, though with a few modern features. Vlad was a car-parts salesman, Nastya a bartender, and Mykhailo a cab driver,and the three of them originally became involved in resistance activities when they traveled around Kherson and looked for the Russian encampments. They were specifically interested in where the Russian troops were staying and storing their heavy equipment. The show didn’t come right out and say Vlad and Nastya were a couple, but it certainly hinted at a romantic interest between them; they recalled how she would make him drinks when he came into the bar where she worked. When the Russians captured Kherson, Nastya’s bar became one of their favorite hangouts. They talked a lot and drank a lot, and Nastya picked up information about what they were saying and passed it on to Ukraine’s official intelligence service. Nastya also reported that the Russian soldiers in her bar were nasty and frequently brutal – one waiter even found himself arrested because the Russian soldier he was waiting on didn’t think the service was fast enough. She said the Russians drank all manner of hard liquors, including whiskey (one wonders if they were taking advantage of being in Ukraine to have drinks they couldn’t get back home instead of being stuck with vodka all the time).

Eventually Vlad crossed the line from just collecting intelligence to killing a Russian soldier; he recalled the incident as he fingered the knife with which he did the killing. He sneaked up behind the Russian with his knife and grabbed him from behind – the Russian was listening to music on earbuds and so he didn’t hear Vlad coming even though, as Vlad grimly joked, he’s a big man and therefore not all that good at sneaking up behind someone silently. Vlad plunged the knife into the Russian’s back and the Russian felt toe knife go in, he turned to face Vlad, and the two wrestled briefly before the Russian finally succumbed to Vlad’s wounds. Richard Engel asked if Vlad had any guilt feelings about the killing, and Vlad said no: the Russians had invaded their country, they didn’t belong in Ukraine, and therefore he felt justified in killing one of them. (At the same time it occurred to me that the Russian he killed was probably a draftee and didn’t want to be in Ukraine aqny more than the Ukrainians wanted him there.) In some ways Sergei’s story was the saddest: unlike the others,who were in their 20’s, Sergei was only 17 when oe got involved with the resistance, and after a few missions he was captured by the Russians. Sergei was held in a makeshift warehouse the Russians had converted into a prison and torture center, and after a few days of torture he “broke” and gave the Russians the information they wanted, including the names and addresses of fellow resisters. One grim irony is that Sergei himself had been ratted out by another resister whom the Russians had already captured and tortured.

Sergei, alone of the four Engel profiled, insisted that his real name not be used and he be shot in shadow so his face couldn’t be recognized. He’s also the only one of the four who isn’t still living in Kherson. While the other three stayed in the city after Ukrainian forces retook Kherson in November 2022, Sergei moved to Kyiv, Ukraine’s capital (which Russians have steadily bombed since the war started but where life is still relatively normal; it’s like the difference between living in London and living in Paris during World War II), and he’s still traumatized by having yielded to torture and giving the Russians the information they wanted – which meant he subjected his friends to the same abuse he suffered himself. Today he’s a “broken” man in more ways than one; he told Engel he doesn’t know how he’s going to pay his rent in Kyiv,, and though he was an aspiring musician before the war started he doesn’t seem to have taken that up again – and it’s possible he can’t, since one of the things the Russians did to him when they held him was break all his fingers. He also said that one reason he moved from Kherson to Kyiv was none of his old friends would speak to him again, and he wanted to be in a place where no one knew him and therefore he wouldn't be hated as a man who broke down and compromised the resistance.

One comes away from Engel’s documentary impressed by the sheer courage and commitment of the Ukrainians – it’s the sort of story that makes you wonder whether you’d have had the guts to do what they did – and also the sheer meanness of occupiers everywhere. Among the things the Russians did during the nine months they controlled Kherson was jackhammer emblems of Ukraine from all the public buildings and order that all public schools should teach their students in Russian. It’s been clear from the get-go that Vladimir Putin’s long-term ambition in Ukraine is not only to subjugate the Ukrainian people but obliterate any idea that Ukraine was ever an independent state or anything other than an integral part of Russia. Though Putin’s army has not (at least so far) set up extermination centers the way Hitler’s did, the war against Ukraine (or, as Putin euphemistically calls it, a “special military operation”; his captive legislature has made it a felony, punishable by a 15-year prison sentence, to call the war a “war”) still constitutes a genocide.

The Interblob (Ten Years Later)

by Mark Gabrish Conlan • Copyright © 2013, 2023 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

AUTHOR’S NOTE, 2023: I’m reposting this article from 10 years ago because it seems to me to make an important point about the rise of what I call “the Interblob” – the extent to which the Internet has taken over virtually every cultural or social interaction between people. Since I wrote the initial article 10 years ago things have only gotten worse. The demise of local TV listings in newspapers was partially reversed shortly after I wrote this piece – the Los Angeles Times went back to publishing TV listings but only over half a page of their Calendar section, no longer a full page – only to kill them off completely and definitively when the COVID-19 pandemic hit.

Since I wrote the original piece, the availability of music and movies for home use has become even more dependent on the Internet. When I wrote the original article physical CD copies had already largely been replaced by Internet downloads. Now even downloads have themselves been replaced by the evil, vile, contemptible practice of so-called “streaming,” which systematically short-changes creative artists both artistically and financially. Mariah Carey has complained that every time someone streams her song “All I Want for Christmas” she gets only – get this – one-sixteenth of a penny in royalties. She’s lucky enough that she started her career in the age of physical media and therefore made a lot of money before the onset of the “streaming” plague. Now in the “streaming” era, it’s impossible to get rich on record sales alone, and artists have to tour constantly and charge humongous ticket prices to profit off their creativity and their fame.

I recently started a new job in downtown San Diego, and that means for the last three weeks I’ve been witnessing the slow death of an old friend. No, I don’t mean a human being. I’m referring to the huge building in front of Horton Plaza that used to house San Diego’s outlet of the long-defunct Planet Hollywood restaurant chain and, more importantly to my point of view, the Sam Goody’s record, video, electronics and entertainment store. It’s being torn down to make way for a so-called “expansion” of Horton Plaza Park that, judging from the artists’ renderings of what it’s supposed to look like, is a typical San Diego public project: spectacularly ugly, offering no continuity with the original park and looking more like an industrial park’s patio than a community gathering center. But that’s another story.

No, the topic today is why Sam Goody’s had to die — and as someone who literally spent thousands of dollars there over the years, I feel like I’m entitled to mourn its passing. It’s the same phenomenon that killed Sam Goody’s most direct competitors, Tower Records and Wherehouse. It’s what killed the Borders bookstore chain and has put Barnes and Noble on its last legs — after those operations themselves ran over hundreds of independent bookstore owners and put them out of business. It’s a phenomenon that’s running roughshod over our culture, our economics and our daily lives, driving us apart from each other and forcing us to relate electronically instead of physically.

It’s the Internet — or, as I’m increasingly calling this malevolent side of it, the Interblob. This isn’t to say there aren’t a lot of positive aspects to the Internet. For one thing, it’s enabled voices that can’t or won’t find their way in print, on radio or to TV a way to get themselves heard. It’s created outlets for media content, including the ones you’re reading this on, that would otherwise not exist. And purely from a practical point of view, the Internet has been of invaluable help to me as a fact-checker. Details in an article I used to have to spend hours in a library combing through books and periodicals to nail down are now available to me online within minutes. It’s made me a more accurate, and therefore a better, journalist.

But, like the Blob in the 1958 sci-fi camp-classic film — a huge piece of protoplasmic jelly from outer space that devoured everything in its path and grew to massive proportions — the Internet has devoured virtually every competing source of information, entertainment or culture. And that’s not all. It’s transformed such basic functions of modern life as the search for a job or the pursuit of a relationship. It’s remolding us all into widgets in an increasingly computerized world in which it’s not altogether clear whether the machines are serving us or we are serving them.

Though virtually no science-fiction writer in the pre-Internet era imagined anything like it — if they wrote about computers at all, it was usually about bigger and better mainframes than the ones from the 1950’s and 1960’s — the Interblob is absorbing more and more aspects of human life. Seemingly nothing in its path is safe — not only bookstores and record stores but newspapers, magazines, even the post office.

Want to look in the newspaper and see what’s on television tonight? Too bad. A month ago the Los Angeles Times announced that they’re discontinuing their prime-time TV listings and put in one of those all-too-familiar snippy notices saying that from then on that information would only be available — you guessed it — on their Web site.

Want to look at a newspaper at all? Too bad. Thanks to the Interblob, newspaper publishers are shrinking their print editions and charging more money for less content. They’re trying to get people to pay for online content but they’re having difficulty finding a way to do that in a manner that’s both fair to consumers and lucrative enough to sustain the expense of news-gathering. Most “news” on the Interblob vampirically sucks the blood out of mainstream media content and merely offers a gloss of opinion or “spin.”

Indeed, the Interblob is so extensively remodeling the rules of journalism that within a decade or two it will essentially cease to be a profession. With the demise of big print newspapers and the dumbing-down of broadcast news in the YouTube era, newsrooms around the country are being dismantled. Professional reporters are being replaced by Internet “stringers” who are paid pittances — when they are paid at all — for tiny stories. Reporters are being turned into digital sweatshop workers being given piece rates for how many “posts” they can get up by ever-quicker deadlines.

In May 2012, according to an article by Ryan Chittum in the March/April 2013 Columbia Journalism Review, the New Orleans Times-Picayune cut its frequency from daily to three times a week — making New Orleans the first major U.S. city, but no doubt not the last, not to have a daily paper at all. The paper’s owner, Advance Publications, laid off half the newsroom staff and replaced the fired reporters with “younger digital natives who could be paid much less … They would be told to write search-engine-optimized posts for the Web multiple times a day, and not to worry about print deadlines.” Under the lash of a corporate manager who had decided that print was dying and the Interblob was the future, they pulled this on a paper whose long-form multi-part investigative reports had earned it national acclaim — and in a city where up to one-third of the population is too poor to have Internet access at all.

Want to buy books at a bookstore? Tough luck. Want to buy CD’s or LP’s at a record store? Too bad. Want the thrill of browsing and discovering an item you didn’t know existed but absolutely fascinates you when you hold it in your hand, and buying it in that spectacular rush of knowing that your life will no longer be complete until you’ve read or listened to it? Forget it. Under the rule of the Interblob, browsing has been replaced by so-called “customized recommendations,” items Web sites offer you based on predictable patterns from what you’ve bought there before. The opportunity for the unexpected discovery has been replaced by an electromechanical feedback loop that circumscribes your taste and timidly sends you where you’ve already gone before.

Indeed, under the Interblob even the opportunity actually to hold a book or a recording in your hand is rapidly vanishing. Audio CD’s are being replaced by “downloads” and books are becoming “e-books” read on that pestilence of devices with cutesy-poo names: Amazon’s Kindle, Barnes and Noble’s Nook, Sony’s Libria (later the Reader) and Apple’s iPad. Amazon’s Web site claims that they now sell more books as Kindle files than they do as actual ink-on-paper books — as if that’s something to be proud of. What’s more, when you “buy” an e-book you don’t actually own it; you merely get a license to use it for as long as the company allows you to. Early Kindle users found that out the hard way when copies of George Orwell’s Animal Farm and 1984 suddenly disappeared from their devices due to a squabble between Amazon and Orwell’s print publishers. With the usual tone-deafness of modern corporations, nobody at Amazon gave a thought as to how it would look when their faceless authoritarian bureaucracy pulled their customers’ access to two famous books exposing the vicious, arbitrary power of faceless authoritarian bureaucracies.

Want to go to the library and read books the old-fashioned way without having to pay for them? Don’t hold your breath. Even though the new San Diego Public Library downtown was sold largely on the promise that thousands of books currently locked away in storage would at last be visible on the shelves and available for checkout, more recently the people running the library have said they’re just going to throw out a lot of those books rather than take the trouble to move them. Why? Once again, the Interblob: people running libraries these says see them primarily as places for people to access the Internet. The Interblob is also destroying the postal service; thanks at least partly due to the shift by corporate marketers from junk paper mail to junk e-mail, their volume has dropped so much that they’re canceling Saturday mail deliveries. Not Saturday package deliveries, though — not when those who still order stuff from Amazon and its competitors in tangible paper form rather than as e-book files are waiting for their deliveries. The United States Postal Service is charging more and more for less and less service — and we’ve all seen how well that worked for the newspaper industry.

But the Interblob isn’t stopping its carnivorous activities just on the cultural front. You want a job? Good luck finding one in the old-fashioned ways like state employment development postings and classified ads. Today not only are the job openings themselves advertised online, you need to send your résumé out online as well and hope the computers don’t screen you out even before it’s seen by a human being. You want a date? Bars and social organizations are cutting back or going out of business as that sort of human interaction, too, gets taken over by the Interblob. People can flirt with each other for months or even years online before they actually meet — go “FTF” (face-to-face), in the modern lingo — and because it’s so easy to edit or fake a computer profile, complete with a photo that’s either ancient, someone else’s or heavily Photoshopped, Interblob dating is even riskier than old-fashioned dating in terms of being lied to, ripped off or otherwise used.

The Interblob isn’t just killing old-fashioned ideals of journalism and culture; it’s also contributing to the ever-greater social stratification of the U.S. and the world. Many areas of the U.S. don’t have Internet access at all. Others don’t have broadband, which as the Internet progresses technically is virtually essential. Thanks to America’s long tradition of turning new media technologies over to private corporations who exploit their customers for maximum profits from minimal service, the nation which invented the Internet has a lower percentage of its population online than virtually every other developed country in the world. Even South Korea has a higher percentage of broadband users in its population than we do.

By now the swollen power of corporations and the super-rich in the U.S. is so great, and so far beyond effective political or social challenge, that virtually every new development in technological or social interaction is going to make the rich even richer and everyone else even poorer. The Interblob is no exception. So much of your ability to access the Internet is dependent on your financial status — whether you have the money for a state-of-the-art connection and a computer to do it justice — that the Interblob is creating a society of information-haves and information-have-nots. If you’re too poor to afford your own computer and broadband connection, once again, tough: you’re relegated to whatever jobs you can find and apply for in your grudgingly doled-out 15 minutes online at a public library.

As the Interblob kills professional journalism and replaces it with so-called “citizen bloggers” — volunteers and poorly paid pieceworkers grabbing whatever little tidbits of information they can and lacking either the skills or the budgets to pry information out of the powers that be that don’t want you to know what they’re up to — we’ll become even more socially stratified. Instead of a time when cheap newspapers and free radio and TV enabled even relatively poor citizens to be well informed about what was going on around them, in the future of the Interblob your ability to follow the political, economic and social events that shape your lives will be directly determined by your income. America’s rising trend towards inequality of income and opportunity predates the Internet — real wages have been declining steadily for 40 years — but as the Internet morphs into the Interblob, it’s only going to get worse.

And if it’s bad now, it’ll only get worse later on. How will future historians and biographers assess our age? When he did his classic documentary The Civil War Ken Burns had paper letters and photographs to draw on to give his film visual interest and bring the drama of the war home in an incredibly intimate way. A future Ken Burns trying to do a similar reconstruction of the 21st century will literally have nothing. The e-mails, text messages, tweets and blog posts of our time will have long since disappeared into evanescence. So will the digital photos we’re all so industriously shooting with our smartphones. Computerized media are so impermanent that even movie studios, which are increasingly shooting their films with digital equipment, still transfer the final results to film so they can be archived. And the technologies to play computer movies, recordings or books change so rapidly files only two to five years old become useless. The Interblob is destroying the very idea of culture as something permanent. E-products are usable only as long as the corporations that ultimately own them allow you to use them, and when they’re used up they literally vanish, disappearing into digital ether at the stroke of a key — either from you or the corporation that decides you’ve had them long enough.

What can you do about the Interblob? About the only thing is personal resistance. Vote with your pocketbook; find that corner bookstore that’s held on through the rise and fall of Barnes and Noble and Borders, or the independent record store that’s survived the decimation of Tower, Wherehouse and Goody’s, and patronize it. You might not be able to get the latest best-sellers but you’ll still find fascinating stuff to read and listen to. Keep and maintain subscriptions to the paper editions of your favorite newspapers and magazines. Socialize with real people in coffeehouses and bars instead of evanescent presences in the digital world. When you encounter one of those hateful “voicemail” systems— whose inventor, I think, deserves to rot in the nastiest and most painful circle of hell — use whatever shrinking options are left to insist on speaking to an actual human being. You’re not going to be able to stop the Interblob, but like the Luddites and the original French saboteurs — workers who threw their wooden shoes (sabots) into the machines to protest the automation that was destroying their jobs — you can at least slow it down a little.

As the Sam Goody’s building on Broadway between Third and Fourth becomes an historical memory, I’ll cling to the nostalgia of all the fascinating music I bought there. Things you wouldn’t expect in a mass-market record store, like a long-lost 1953 recording of Verdi’s Aïda with John Barbirolli conducting and Maria Callas in the title role. Love, Gloom, Cash, Love, the last recording of the woefully neglected and underrated jazz pianist Herbie Nichols. Yoko Ono’s album Blueprint for a Sunrise. An overwhelming performance of Wagner’s Götterdämmerung from the 1951 Bayreuth festival. A two-CD collection called From Gershwin’s Time that was exactly what its title said: historical recordings of George Gershwin’s music made when he was still alive. Maybe I would have found these things browsing online, but I didn’t. I bought real, physical, tangible copies and gave the money for them to an in-the-flesh sales clerk I could talk to, often getting surprising insights about what I’d just purchased.

As the Interblob consumes all other forms of human interactions, the opportunities for much of what makes life worth living — from the chance to advance yourself career-wise to the experience of unusual or unfamiliar culture — will either shrink or simply disappear. We’re being told that all this is “inevitable,” that it’s the price of technological change and we’ll be better off when we’ve eliminated all those pesky old remnants of pre-Interblob culture like books, CD’s, newspapers and coffeehouses. But permit me to disagree and to long for the days when companies paid people to answer their phones instead of having machines do it, when you could read the news of the day on paper instead of having to log on to a computer and absorb it online, and when a book was a book was a book, and once you knew how to read a book 10, 50, 100, 200 or even 500 years old was as accessible and as permanent as one published yesterday.

Tyre Nichols: A Black Man Killed by Black Cops in Memphis, Tennessee

by Mark Gabrish Conlan • Copyright © 2022 by Mark Gabrish Conlan • All rights reserved

Like most of the rest of America, I was shocked by what I saw on the news on Friday, January 27. Though the incident they were covering had happened nearly threw weeks before – 29-year-old African-American Tyre (pronounced “Tye-ree”) Nichols was brutally beaten by five Memphis Police Department officers on January 7 and died from his injuries three days later – January 27 was the day the city of Memphis released body-camera and surveillance footage of the savage attack on Nichols.

Tyre Nichols was a 29-year-old Black man who worked for FedEx and whose hobbies were nature photography and skateboarding. On the evening of January 7, at about 8:25 p.m., he was pulled over, allegedly for “reckless driving” – an infraction that, as one MS-NBC commentator noted, is entirely subjective. Speeding, running a red light or making an illegal turn are all traffic offenses readily visible and documentable. “Reckless driving” basically means “driving in a way the police officer watching you doesn’t approve of.”

Nichols pulled over when the officers approached him, and at first he behaved politely. He didn’t panic; he spoke to the officers in calm, measured tones and attempted to answer their questions as best he could. Something must have set them off, though, because Nichols found himself first being forcibly pulled out of his vehicle and then forced to the ground. Officers gave him contradictory instructions. Put your hands up! Put your hands down! Lie on your stomach! Lie on your back!

At one point during the encounter Nichols seems to have realized his life was literally at stake if he stayed there with the police relentlessly abusing him, so he tried to run away. The cops hunted him down and, if anything, his attempt to escape seemed to have riled them up even more. The cops took turns beating Nichols and kicking him, in the words of one person watching the tape, as if he were a football. At times some of the officers held Nichols and sat him up so their brothers in blue could punch him. At least two emergency medical technicians from the Memphis Fire Department watched the later stages of the encounter and did nothing to try to help Nichols.

The Sting of the SCORPION

Nichols’ death was especially shocking because Memphis, Tennessee had tried to do at least some things right. Their current police chief, Cerelyn “C. J.” Davis, is a Black woman, though the city’s mayor, Jim Strickland, is a white man. Memphis has at least attempted to reform the ways its police officers are trained, including so-called “de-escalation” classes on how to defuse street confrontations without violence or anger. D

avis has said at least some of the right things since Nichols’ killing. "As we continue to try to build trust with our community, this is a very, very heavy cross to bear -- not just for our department but for departments across the country," she stated. "Building trust is a day-by-day interaction between every traffic stop, every encounter with the community. We all have to be responsible for that and it's going to be difficult in the days to come."

But Memphis has also done bad things in its attempts to get a handle on street crime. All five police officers who attacked Nichols were members of the so-called “SCORPION” unit, supposedly an elite force within the police department set up to combat gang activity. Like the USA PATRIOT Act and the radical anti-AIDS organization ACT UP, SCORPION was first given an acronym and only later did they put together a name it would stand for: “Street Crimes Operation to Restore Peace in Our Neighborhoods.”

The SCORPION unit was announced in October 2021 and launched a month later. At the time, Memphis assistant police chief Sean Jones told a reporter for a local Memphis TV news program that the unit would focus on drugs, gangs and ahto thefts. "It's important to us that each member of the community feels they can go to the grocery store or live in their house without their house being shot or shooting frequently occurring on the streets and on the roadways," Jones said in November 2021.

But the SCORPION unit’s aggressive tactics alienated members of the community they were supposedly protecting and serving. As a former Mmephis police officer told CBS News anonymously on January 28 (https://www.cbsnews.com/news/tyre-nichols-former-memphis-police-officer-scorpion-unit/), members of SCORPION – including Demetrius Haley, one of the five officers involved in Nichols’ killing, whom the former officer interviewed knew especially well – believed in a “proactive” style of policing in which, if you didn’t confront the alleged “bad guys” aggressively, you weren’t doing your job.

"We deal with very bad people,”the officer told CBS..”There are fights and foot chases but we all have an understanding when it's time to stop." Unfortunately for Nichols, his family and the cause of decent law enforcement in general, the five police officers who killed him – Haley, Tadarrius Bean, Emmitt Martin III, Desmond Mills Jr. and Justin Smith – didn’t get the message about knowing when it was time to stop.

Black-on-Black Police Violence

Nichols’ death also scrambles the usual racial script about these incidents because not only was he African-American, so were the five officers who physically attacked and brutalized him, and left him for dead. This wasn’t supposed to happen. Previous generations of would-be police reformers pushed for police dep-artments to hire more officers of color on the theory that this would make the departments more responsive to communities of color.

It hasn’t worked out that way. As Wesley Lowery, author of a book on police relations with the Black community called They Can’t Kill Us All, said on the January 27 edition of the PBS-TV program Washington Week (https://www.pbs.org/weta/washingtonweek/video/2023/01/washington-week-full-episode-jan-27-2023), “I have friends who say this to their kids when they have the talk, right, that when you see a police officer, they are not white or Black, they are blue. And police will often say that themselves, meaning something a little different. But in this case, what we saw here were agents of the state enacting severe violence against a man who, again, from what we can tell, did not seem to be posing much of a threat to them.”

The killing of Tyre Nichols is just one of a number of recent incidents that don’t fit neatly into either racist or anti-racist scripts of what “normal” encounters are like. Almost no one who talked about the killing of George Floyd in Minneapolis two years ago mentioned that not only was the Minneapolis police chief a Black man, only two of the four officers involved in Floyd’s killing were white. The other two were Asian. And in the recent mass murders of Asian-Americans in Monterey Park and Half Moon Bay, California, not only were the victims Asian, so were the alleged shooters.

A number of people have suggested that the Memphis Police Department and Shelby County district attorney Steve Mulroy wouldn’t have moved as quickly against Nichols’ alleged murderers if they’d been white cops instead of Black ones. They’ve already been fired from the department and formally charged with second-degree murder and other crimes. In a January 26 press conference, Mulroy said, "We want justice for Tyre Nichols. … The world is watching us and we need to show the world what lessons we can learn from this tragedy."

But the iast time the nation was riveted on a case of police brutality, the killing of George Floyd in 2020, nothing much changed. The George Floyd Justice in Policing Act passed the House of Representatives but died in the Senate, yet another victim of the insane 60-vote threshold of the filibuster. This time, though President Joe Biden has called on Congress to pass it again, it probably won’t even get through the House now that Republicans are back in control after the 2022 midterms.

A few local police departments, including Memphis’s, tried to institute “reforms,” but the biggest political result of the furor over Floyd’s murder was negative. Calls to “defund the police” were readily seized on by Right-wing politicians who used them to scare voters to death and lead them to oppose any significant rethought of just how we do policing in the U.S.

Indeed, one of the things I found most startling about the debate over American policing in the wake of George Floyd’s murder was the assertion by anti-racist activists that the origin of modern professional policing lay in the patrols organized by Southern state government and plantation owners to hunt down runaway slaves. At first I thought this was just anti-racist hyperbole, but then I did a little more reading and found it was absolutely true.

So one of the functions of professional police since the U.S. first started making police work a source of paid employment has been to set and enforce limits on the autonomy of African-Americans. And that has remained true even as more Black police officers have been hired.

The Toxicity of “Police Culture”

One of the most important aspects of Wesley Lowery’s Washington Week comment is that “when you see a police officer, they are not white or Black, they are blue.” It’s a measure of the persistence of what has been called “police culture,” a series of habits and assumptions that have been baked into American law enforcement for decades and that has proven significantly resistant to change.

“Police culture” essentially divides the world into two categories: cops and crooks. While it pays lip service to the idea that most people are neither cops nor crooks – just ordinary law-abiding citizens trying to do their jobs, make their livings and use whatever free time they have for legitimate entertainment – all too often police interactions with other people are based on an assumption that you have to “prove” you are law-abiding in order to persuade the cops to leave you alone.

Lowery also mentioned “the talk,” the conversation virtually all Black parents, especially middle- and upper-class Black parents, have to tell their children just how they should react when a police officer stops them for any reason, The idea behind “the talk” is if you just act deferentially enough to the officer, show your I.D. when asked to, speak in a soft-spoken manner, avoid doing anything that the officer even remotely might perceive as a threat, he or she will let you go and won’t put you on the “bad ‘N’-word” category deserving of arrest or worse.

One of the saddest TV news reports I saw was the one in which a professor nf African-American studies at Princeton University told a host on MS-NBC that what most horrified him about the death of Tyre Nichols was the fact that Nichols had done everything young Blacks are told to do in “the talk.” He was soft-spoken and didn’t challenge the officers who stopped him. The professor on MS-NBC said with profound sadness and regret that nothing he’d told his own son about how to handle an interaction with police would have saved him, any more than it saved Tyre Nichols.

One of the biggest mistakes the Memphis Police Department made whent hey set up the SCORPION unit was to staff it largely with police officers who had previously worked as corrections officers in jails or prisons. If you’re a prison guard, it’s all too true that everyone you interact with is either a fellow officer or a criminal. I suspect that locks people into a mindset that reinforces the already toxic aspect of police culture that assumes everybody is either a cop or a crook.

People have bemoaned the seeming lack of efficacy of attempts to train police officers to de-escalate the situations and reduce or eliminate the use of force. That’s just another way police culture reinforces and reproduces itself. All too many officers have recalled being teamed up in their first days on the job with older officers who’ve told them, “Forget all that bullshit they taught you in the Academy. Here’s how the world really works.” No matter how much training we give new recruits to the job to “de-escalate” situations, no matter how much we try to educate them in restraint, the old-boy network of police departments everywhere undoes it. So does the military-style ranks with which almost all police departments are organized.

One of the people who got interviewed on MS-NBC ini the wake of the Nichols killing was Libertarian author Radley Balko, who in 2914 published a book called Rise of the Warrior Cop. He told the story of how certain progressive police chiefs tried to get rid of the military-style ranks – and had to back down when their officers strongly rebelled. I remember seeing Balko interviewed on MS-NBC in the wake of the George Floyd killing in 2020, and I immediately ordered his book.

It was fascinating reading Rise of the Warripor Cop during the 2020 Presidential campaign because one of the biggest villains in his book was Joe Biden. Balko described how Biden pushed many “tough-on-crime” bills through the U.S. Senate and into law,often taking more hard-line positions than Republicans. Balko was especially critical of Biden for championing so-called “no-knock searches” in alleged drug cases, not only calling them a violation of the Fourth Amendment but telling all too many stories of innocent people getting killed, beaten or having their homes destroyed based on “no-knock” searches onflimsy or nonexistent evidence.

Ironically in light of more recent events, Biden’s justification at the time was that the Democrats couldn’t afford, politically, to have the Republicans own the “crime” issue and portray themselves as the “law and order” party. Once Biden ran first for vice-president no Barack Obama’s ticket and then for President on his own, he moved left onthe crime issue in order to gain support from Black primary voters – and this nearly cost him the general election and sliced the Democratic House majority from 40 seats to five as Republicans eagerly and gleefully poinced on calls to “defund the police” and made it seem like Democrats wanted to get rid of police forces entirely.

Only a tiny handful of people who said “defund the police” actually meant eliminating 100 percent of police funding. Most of them were calling to redirect money going to law enforcement and spend it instead on social programs,mental-health counseling and projects aimed at reducing the income gap between whites and people of color. But the Republican fear campaign, which produced TV commercials showing people calling 911 and getting no response at all, carried the day and the U.S. blew its most recent chance to rethink how we do domestic law enforcement.

The “Duty to Aid”: Not an Option

One of the most intriguing criticisms of the Memphis police assault on Tyre Nichols and his resulting death is the people who are saying that the police had a duty to help Nichols once they’d incapacitated him.This seems to have been one of the reasons not only for the Memphis Police Department firing the five officers involved in the attack on Nichols but the Memphis Fire Department letting go the two EMT’s who patiently stood there and didn’t do anything to stop the assault on Nichols. They just waitd until his police assailants were done with him.

But those who suggest that police officers and firefighters on the scene could have exercised a “duty to aid” and tried to stop the horrendous attack on Nichols files in the face of how hierarchical organizations and systems work. Faced with a choice between remaining true to the brotherhood (there’s a reason why the U.S.’s largest police union is called “Fraternal Order of Police’) and defying it, just about any police or fire officers will go with the brotherhood every time.

The talk about whether the Memphis police and fire officials should have tried to stop what was happening to Nichols reminded me of the stories I’ve read of what happened to Nazi concentration-camp guards who tried to call out their colleagues for the inhumanity of their treatment of prisoners. Squeamish guards who felt guilty and complained about what they were doing to the inmates were often told,”If you don’t like what we’re doing, we can always put you on the other side.” The idea of being tumbled all the way down the racial scale, from Aryan Übermensch to doomed under-class Untermensch, was enough to keep nearly all people in line and on board with the Nazis’ evil.

What happened to Tyre Nichols has been called a “lynching,” but in fact it’s worse than that. Lynching meant the wanton murder of (mostly) Black people by private citizens, while official law enforcement looked the other way and quietly condoned it. What happened to Tyre Nichols was the law-enforcement system itself going haywire and enforcing street “justice” on a young Black man who did nothing illegal and posed no threat to anyone.

In some respects, America is a giant concentration camp for Black people in particular. Black Americans are constantly being reminded that they have no rights white people, especially whites in positions of authority, are obliged to respect. Their rights to life,liberty and the pursuit of happiness an be snatched away any time the white establishment or its representatives feel like it, and Blacks who are admitted into the “club” of law enforcement face a double pressure to prove they’re “one of us”or face retribution themselves.

That’s the real reason for the otherwise inexplicable fact that Tyre Nichols was done in by people who, at least superficially, looked like him. Throughout American history, Blacks who tried to rise above the station white America had decreed for them have been slapped down hard. Ad Blacks who gain a certain degree of power and privilege in the system by becoming police officers or even Presidents (there’s a reason why the Secret Service reported more threats against Barack Obama than any other President, before or since) are constantly being put on notice that it can be snatched away from them at any time.

"Word Is Our" 45 Years Later: Not as Dated as You Might Think

by Mark Gabrish Conlan • Copyright © 2022 by Mark Gabrish Conlan • All rights reserved

Word Is Out: Stories of Some of Our Lives was a pioneering documentary, filmed over a five-year period and released in 1977 whose imdb.com page describes it as, “Twenty-six diverse Lesbian and Gay people are interviewed about their lives and the challenges they experience in a homophobic culture. A ground-breaking documentary is now an artefact of a different time.” Not as different as we’d like to think; though the overall Queer community (to give it the name I use as an all-inclusive term for Lesbians, Gay men, Bisexuals and Transgender people because I hate the ugly and preposterous acronym “LGBTQ+ people” that has regrettably become standard in most media depictions of us) has won an extent of legal, social and political recognition that few people would have dared imagine in 1977, we still have a long way to go and, as one woman who survived the McCarthy-era witchhunts and the mass discharges of Lesbians from the Women’s Army Corps says in the movie, whatever acceptance we’ve gained is fragile and could just as easily be snatched away. I’ve often cited the example of Germany, which during the Weimar Republic era (1919 to 1933) was the most Queer-accepting country in the Western world, only when the Nazis took power that suddenly reversed itself and Queer people were marked for elimination in the Holocaust along with Jews, Communists, Gypsies and others the Nazis considered scum of the earth.

Warning bells about the fragility of our acceptance went off big-time when the U.S. Supreme Court overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case last June, and Justice Clarence Thomas (one of the most thoroughly evil people who has ever sat on the Supreme Court) published a concurring opinion saying that now that the Court had got rid of Roe v. Wade it was time to re-look at the decisions that had banned anti-Queer sodomy laws and found a constitutional right to same-sex marriage. That sparked the U.S. Congress to pass the “Respecdt for Marriage Act” in the waning days of 2022, but though that protected the right to same-sex marriage as a matter of federal law, it did not (as the Court’s Obergefell v. Hodges decision did) require states to allow same-sex marriages themselves. It just says they legally can’t refuse to recognize a same-sex marriage performed in a state where such marriages are legal.

My personal involvement with Word is Out came not from the film itself, which I didn’t see for many years after it was made, but from the accompanying book the so-called “Mariposa Film Collective” (the six people who made it: Peter and Nancy Adair, Andrew Brown, Rob Epstein, Lucy Massie Phenix, and Veronica Selver) published. This was one of the first books I read when I finally decided, as a 30-year-old in late 1982 who’d been involved in a live-in relationship with a woman for nearly five years, that I was going to accept the reality that I was a Gay man. (She and I remain good friends and my husband and I recently spent Christmas having dinner with her and her daughter.) The book was structured differently from the film; whereas the film intercut between the interviews (not always clearly: the filmmakers didn’t use chyrons to tell us who was talking – they just put everybody’s picture in a single title card at the start of each of the three parts of the film, and good lu9ck trying to remember who was who), the book presented each subject in their own chapter and allowed us to get more of a “feel” for each one as an individual. The filmmakers deserve credit for attempting to show the sheer diversity of the Queer community; there are older people, younger people and middle-aged people, and there are Black, Latino/a and Asian people as well as white people. (One of the clearly demonstrably wrong impressions a lot of people have of the Queer community – especially by its political enemies – is that it’s all, or nearly all, white.)

However, it pretty much dodges the question of Bisexuality (two of the male interviewees hint that they’re actively Bisexual, but the filmmakers don’t press them on the subject) and includes virtually no Transgender people. The one man in the film who seems Trans when we first meet him explains that, though he likes to present as both male and female, he had eventually decided to self–identify as a Gay man. (I suspect if a similar person came out today they’d identify either as Trans or as “non-binary.”) Yet one of the most progressive aspects of Word Is Out is that, even among the people in the film who say they were “born this way,” a lot of them talked about the major parts of their lives they lived as heterosexuals, including marrying opposite-sex partners and having children with them. One of the saddest moments of the film is when a Southern-born woman who got married, had children and then fell in love with a female partner had all her children taken away from her and given to their father – so while she’s raising her partner’s children as a co-parent, she’s cut off from any contact with her own. It’s also fascinating to me that both the Lesbians and Gay men in the family who have children regard them as an integral part of their lives and don’t at all consider them a burden; in fact, the people in the film who do have kids talk up the experience to their partners or friends who don’t and say how much their children have added to their lives even though they’ve walked away from the world of reproductive sexuality.

Another elephant in the room that’s inevitably going to come up is the impact of AIDS on the Queer community; as the “Trivia” section on the film’s imdb.com page notes, “In a special feature of the thirtieth-anniversary DVD of Word Is Out, Rick Stokes discusses the impact of AIDS on the Gay male community in San Francisco. Images of the film's interview subjects who died of AIDS appear on the screen as he speaks: Donald Hackett, Tede Mathews, Michael Mintz, and Stokes' own lover, David Clayton.” The imdb.com page also lists “Deceased Cast & Crew” members, though many of them died not of AIDS comlpications but simply of old age: Pat Bond, John Burnside, Sally M. Gearhart, Elsa Gidlow, Donald Hackett, Harry Hay, Rick Stokes, George Mendenhall, Nadine Armijo, Tede Mathews, Michael Mintz, and co-director Peter Adair. I was especially gratified that Harry Hay was extensively featured – in 1994 I chose him as the cover boy for the first issue of Zenger’s Newsmagazine because he had more to do with starting the Queer liberation than any other individual (in 1950 he founded the Mattachine Society, the beginning of continuous Queer liberation activism in the U.S.) – and the Word Is Out filmmakers co-interviewed him with his partner, John Burnside, for an example of growing old as a Gay male couple my husband Charles and I can use now.

It was also interesting to see Rick Stokes as a hero because in the late Randy Shilts’ biography of Harvey Milk, The Mayor of Castro Street, he’s presented as essentially a villain: the Gay member of the San Francisco political establishment who was put up as a candidate against Milk when he ran for the Board of Supervisors of the City and County of San Francisco in 1977. Though Stokes wasn’t that conservative – he was still a Democrat, after all – he comes off in the movie asd representative of the sorts of Queers who were repulsed by the more flamboyant participants in the Pride parades, but he still comes across as a multi-dimensional figure and an example of how even a relatively “conservative” man or woman in their personal presentation can identify with the Queer movement and be a part of it.

Word Is Out is an unexpectedly relevant movie for our own time in that, even though we seem to have reached a plateau of acceptance, there are mass social and political forces in this country who aim to take it all away from us. The same year Word Is Out was released – 1977 – former orange-juice spokesperson Anita Bryant launched the so-called “Save Our Children” campaign against Queer-rights legislation. Bryant argued that “homosexuals cannot reproduce’ therefore, they must recruit,” and she said that we needed laws to repress the Queer community because otherwise we’d recruit so many children the very existence of the human race would be threatened. Bryant’s rhetoric lives on in the governor of her own state, Ron DeSantis of Florida, who’s positioning himself to run for President as a Republican in 2024 largely on a promise to stop the so-called “grooming” of children by unscrupulous Gay men. DeSantis pushed through the Florida legislature the so-called “Don’t Say Gay” bill, which bans discussion of sexual orientation oir gender identity not only in the first three grades of elementary school but throughout the curriculum. Opponents of the bill argued that it could be used to fire a Gay or Lesbian teacher who honestly answered a student’s question about their marital status. One of the film’s interviewees answered the so-called “grooming” charge by saying that as a 12- to 14-year-old he aggressively cruised older Gay men, and he was the sexual aggressor.

He also recalled his days as a “regular” at the Black Cat Café in San Francisco, where Imperial Court founder José Saria put on parody operas and led the crowd at closing time with a rewrite of the British national anthem called “God Save Us Nelly Queens,” Black Cat Café “regular” George Mendenhall said in Word Is Out, “It sounds silly, but if you lived at that time and had the oppression coming down from the police department and from society, there was nowhere to turn ... and to be able to put your arms around other Gay men and to be able to stand up and sing 'God Save Us Nelly Queens' ... We were really not saying 'God Save Us Nelly Queens.' We were saying, 'We have our rights, too.” In 1963 Saria became the first openly Queer candidate to run for poiitical office – the San Francisco Board of Supervisors – and despite the fact that police regularly maintained a blacklist of just about everyone who publicly advocated for Queer rights in any way whatsoever, he got enough people tosign his nominating petition and he made it onto the ballot. All in all, Word Is Out 45 years later is an extraordinary document, at once a slice of history of the pre-AIDS Queer community and a reminder that, however much progress we think we’ve made, it could all be snatched away from us pretty easily and we may have to learn from our foremothers and forefathers how to fight these struggles all over again.

How Do You Tame a Rogue Supreme Court?

by MARK GABRISH CONLAN

Copyright © 2022 by Mark Gabrish Conlan for • All rights reserved

How do you tame a rogue Supreme Court?

That question has been on the minds of politically aware Americans whose politics are left of Atilla the Hun’s since late last June, when the current six-member radical-Right majority on the Supreme Court issued a trifecta of rulings severely restricting the rights of people, including women seeking control of their own bodies and people concerned about gun violence and the environment.

In quick succession, the current Court majority overruled Roe v. Wade, the landmark decision that for nearly 50 years had restricted the federal and state governments from telling women what they could do with their own bodies, including how to deal with an unwanted pregnancy. They also overturned as unconstitutional a century-old law in the state of New York that banned the carrying of concealed weapons in most circumstances. And they severely restricted the power of the U.S. Environmental Protection Agency (EPA) to curb emissions from coal-fired power plants.

Tne U.S. Supreme Court began its new term on October 3, and the list of cases it has chosen to hear this year indicates that the current Court majority fully intends to continue their ideological Right-wing crusade. Already on October 4 the Court heard arguments on an appeal from the state of Alabama defending a Congressional district map that crowds as many Black voters as possible into a single Congressional district, thus virtually ensuring that six of Alabama’s seven Congressional seats will be held by white people even though more than one-fourth of Alabama’s population is African-American.

Such shenanigans were supposed to be illegal under the Voting Rights Act of 1965, one of the two principal achievements the Black civil-rights movement wpn in Congress in the 1960’s. But the Supreme Court has already started rolling back the Voting Rights Act starting in 2013, when in Shelby County v. Holder it struck down the law’s “pre-clearance” requirement that certain states with a history of discriminating against African-Aemricans and other voters of color submit any changes in their election laws to the U.S. Department of Justice before they could take effect.

Having already given the green light to states with histories of voter suppression to start doing it again, the Court further weakened the Voting Rights Act in Brnovich v. Democratic National Committee (2021) by declaring that restrictions on mail ballots and other means of early voting did not violate the Act. They also ruled that plaintiffs seeking relief under the Voting Rights Act had to prove not only that the state actions they were challenging had the effect of weakening the political powers of communities of color, but that they were intended to do so.

Critics fear that the only reason the Court majority agreed to take the current voting rights case, Merrill v. Milligan, as a vehicle to abolish what’s left of the Voting Rights Act or so severely limit its application that it becomes useless. They already signaled their intention to do that when they granted a stay of the lower court’s decision so Alabama coldc use the racially drawn districts in this year’s midterms – the same sort of signal they sent in September 2021 when they refused toenjoin the Texas anti-abortion law, SB 8, which was clearly in violation of Roe v. Wade – which they already intended to reverse.

The Court is also hearing Louisiana v. United States (https://www.npr.org/2022/10/18/1126287827/redistricting-supreme-court-louisiana-black-african-american). It’s a voting-rights case in which the state of Louisiana is defending a Congressional redistricting map that leaves Louisiana Blacks with only one majority district out of seven, even though African-Americans are one-third of Louisiana’s population. The state legislature which drew that map sought to evade the Voting Rights Act by rewriting the definition of “Black.” They said that any person who identified on the U.S. Census as both “Black” and another sort of person of color would no longer be considered “Black” fur purposes of the Voting Rights Act. Already, in late June, the Court issued an emergency order allowing the new discriminatory map to be used in the 2022 election, a probable signal that the six-member radical-Right Court majority intends to deal yet another blow to the Voting Rights Act by allowing the Louisiana legislature to get away with their racist shenanigans.

And this isn’t the only racially charged case the Court is hearing this year. On October 31 they heard a case that could totally abolish race as a factor in college admissions, an issue an earlier Supreme Court supposedly settled by allowing universities to consider race as one factor in admissions. The Court also is considering a case called Sackett v. Environmental Protection Agency which attempts to do to the Clean Water Act what West Virginia v. EPA did to the Clean Air Act: to block the EPA from using the Clean Water Act to stop or slow down water pollution.

And it’s also considering a case brought by Colorado Web designer Lorie Smith, who claims that Colorado’s law protecting Queer people against discrimination in public accommodations violates her right to free speech by preventing her from discriminating against same-sex couples. The court already ruled in 2018 that a Colorado baker called Masterpiece Cakeshop couldn’t be required to bake a wedding cake for a same-sex couple on the ground that doing so would violate their freedom of religion.

In Octrober 2020 two Justices, Clarence Thomas and Samuel Alito, went on record as saying the decision of the Court to strike down laws banning same-sex marriage violated the religious freedom of Americans who believe such marriages are immoral (https://www.cnn.com/2020/10/05/politics/thomas-alito-obergefell-same-sex-marriage-analysis/index.html). They didn’t explain why they thought the beliefs of people religiously opposed to same-sex marriage shoupd prevail over the beliefs of those in favor of marriage equality.

One more case the Supreme Court heard in early October is National Pork Producers Council v. Ross (https://www.reuters.com/markets/commodities/pork-industry-takes-fight-over-california-law-us-supreme-court-2022-10-10/ and https://www.eenews.net/articles/scotus-probes-calif-pork-fights-far-reaching-consequences/), This is a challenge to Proposition 12, passed by California voters in 2018, which sets standards for raising pigs and chickens and bars the sale in California of meat and eggs from anima;s that aren’t given enough space to move around in according to the law.

The National Pork Producers Council, American Farm Bureau Foundation and – interestingly – the Biden administration are saying a state cannot regulate business more stringently than the federal government does under the clause in the Constitution giving Congress the power “to regulate commerce between the states.” A group of 16 U.S. Senators, including Dianne Feinstein and Alex Padilla, filed an amicus curiae brief in defense of the law.

According to the 16 Senators’ brief, a ruling for the pork industry "could allow large, multi-state corporations to evade numerous state laws that focus on harms to their constituents, including those addressing wildlife trafficking, climate change, renewable energy, stolen property trafficking and labor abuses."

“Independent State Legislature” = End to Democracy

But by far the most dangerous case the new U.S. Supreme Court majority is considering, Moore v. Harper, involves a North Carolina redistricting case in which the state legislature has invoked something called the “independent state legislature theory.” For years there’s been a pitched battle between the North Carolina legislature, dominated by Republicans, and the state’s courts.

The North Carolina legislature keeps drawing district maps designed to keep Republicans in power for the next 10 years or longer. North Carolina’s courts, including the state’s supreme court, keep throwing out those maps on the ground that they violate the state constitution’s anti-discrimination protections.

Now the current legislature in North Carolina is asking the U.S. Supreme Court to put their redistricting maps beyond judicial challenge at either the federal or state level. They’re doing this by invoking an arcane idea called the “independent state legislature theory,” which holds that Article I, section 4 of the Constitution – “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” – grants state legislatures absolute, unreviewable powers to determine just about everything relating to elections.

Now, if there’s one thing that’s pretty consistent throughout the U.S. Constitution, it’s that the people who wrote it weren’t keen on the idea of giving anybody unfettered, unreviewable power. They created an elaborate system of checks and balances precisely because they thought that the way to keep government from being inimical or corrupt was to disperse authority, so that even if one branch of government went off the rails, the other two branches would be able to stop them.

This has made it maddeningly difficult for any American government or political party, even when supported by a large majority of the people, to make sweeping changes in the way we are governed. But if the Supreme Court enshrines the “independent state legislature theory” into Constitutional law, the consequences would be so catastrophic it would essentially spell the end of the American republic and its likely replacement by the Republicans as a one-party dictatorship.

The Republicans already have gained an outsized importance on American politics by their shrewd manipulation of the anti-democratic features built into the U.S. Constitution. In order to make any law, it has to be passed not only by the House of Representatives but by the Senate, and the Constitution gives each state two Senators regardless of the size of its population. We select the President not by direct popular vote, but by an “Electoral College” composed of electors representing the total number of House and Senate members from each state – which extends the outsized influence of small states in the process. And until 1913, state legislatures, not state voters, chose the Senators.

Other anti-democratic features of the U.S. government were added later. The whole business of the U.S. Supreme Court having the power to overturn laws by declaring themselves unconstitutional isn’t in the Constitution. It was unilaterally declared by the second Chief Justice, John Marshall, in an 1803 case called Marbury v. Madison in which he wrote, “It is the express purpose of the judicial department to say what the law is.”

The filibuster that has done so much to hamstring the U.S. government and given the Senate the reputation as “the place good ideas go to die” came about through an historical accident, In 1837, realizing that the people who wrote the Senate rules had failed to include a mechanism for closing debate, a Senator who wanted to kill a bill that had majority support decided to talk it to death. In 1975, a supposed “reform” made the filibuster more deadly by removing the requirement that Senators wishing to filibuster actually had to rise to the floor and debate. Instead, they could jist fill out a form invoking the filibuster – which has led to the insane 60=vote requirement for the Senate to do just about anything.

Now the Supreme Court is seriously considering putting the power of state legislatures to regulate elections beyond any review – not by federal courts and not by state courts either. As Ethan Herenstein and Brian Palmer of Politico.com reported on September 16 (https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810), it was based on a well-known fake document produced in 1818 by Charles Pinckney, a delegate to the Constitutional Convention of 1787 who responded to an appeal for historical records from the Convention by supplying what he claimed was a draft constitution he had submitted to the Convention 31 years earlier,

According to Herenstein and Palmer, James Madison – who had more to do with creating the Constitution than any other individual – was around when Pinckney submitted his alleged draft, and he didn’t like it. Madison, according to Herenstein and Paumer, “was ‘perfectly confident’ that it was ‘not the draft originally presented to the convention by Mr. Pinckney.’ Some of Pinckney’s text, Madison observed, was impossibly similar to the final text of the U.S. Constitution, which was painstakingly debated over the course of months. There was no way Pinckney could have anticipated those passages verbatim.

“In addition,” Herenstein and Palmer wrote, “Madison was quick to point out, many provisions were diametrically opposed to Pinckney’s well-known views. Most telling, the draft proposed direct election of federal representatives, whereas Pinckney had loudly insisted that state legislatures choose them. Madison included a detailed refutation of Pinckney’s document along with the rest of his copious notes from the Convention. It was the genteel, 19th-century equivalent of calling B.S.”

Nonetheless, the North Carolina legislature is relying on this discredited document to make their case that the framers of the Constitution intended to give state legislatures unfettered power over all elections. And if the current Right-wing Supreme Court majority declares the “independent state legislature theory” the law of the land, it would allow Republican-controlled legislatures in key swing states simply to nullify the results of a Presidential election and appoint their own electors regardless of how their voters actually voted – just as Donald Trump and his legal advisors, including Rudy Giuliani and John Eastman, were asking them to do in 2020 after Joe Biden defeated Trump for re-election.

In fact,the “independent state legislature theory,” coupled with the current Court majority’s evisceration of the Voting Rights Act, amount to a recipe for future one-party rule in the U.S. Republicans already dominate state governments. According to Ballotpedia (https://ballotpedia.org/State_government_trifectas), there are 23 states where Republicans control the governorship and both houses of the legislature, 13 where Democrats do and 14 which are split – and under the “independent state legislature theory,” a Republican-dominated legislature could determine the outcome of an election even if the state’s governor was a Democrat, since he or she would have no power to stop them.

The scenario the “independent state legislature theory” would set up would essentially spell the end of representative democracy in the U.S. A state legislature with a Republican majority would be able to gerrymander its districts to maintain power forever because they would have so diluted the votes of people opposed to them that elections would be meaningless. They would have unlimited power to suppress the votes of communities opposed to them by making sure people not likely to vote Republican couldn’t vote at all. And even if they lost an election, they’d have the power to set aside the results and declare themselves the winners.

All these are things Republicans are already doing in states they control, but so far their powers have been limited by the sheer weight of American tradition and what shards of the Voting Rights Act and other laws aimed at protecting the people’s right to vote the current Court majority has allowed to remain in place. But if the Right-wing Supreme Court majority enshrines the “independent state legislature theory” into constitutional law, the result will be a perpetual one-party Republican dictatorship in the U.S.

If you want an example of what the “independent state legislature theory” will look like in practice, just take a look at Wisconsin. According to an article Ari Berman posted to the Mother Jones magazine’s Web site October 25 (https://www.motherjones.com/politics/2022/10/wisconsin-2022-midterms-gerrymandering-redistricting-evers-michels/), Wisconsin’s Republican majority in the state legislature has so totally gerrymandered its districts that the Democrats would have to win the statewide vote by 12 percent just to eke out a bare majority in the Wisconsin Assembly. Wisconsin Republicans are likely to win a two-thirds super-majority in the legislature this year, so even if voters re-elect the state’s Democratic governor, Tony Evers, he will be powerless to stop the Republican legislative agenda.

Wisconsin got to this stage at least in part thanks to the U.S. Supreme Court and its current radical-Right majority. According to Berman, the current legislative maps are the product of an ongoing battle between the Wisconsin legislature and Governor Evers over redistricting. Evers won a narrow majority in the Wisconsin Supreme Court for his map, but the U.S. Supreme Court overruled it in an unsigned per curiam opinion last March (https://www.supremecourt.gov/opinions/21pdf/21a471_097c.pdf).

The court accused Evers’ map of “embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected.” And Evers’ Republican opponent in the November 8 election, Tim Michels, told a private meeting of donors in late October that if he wins, Republicans “will never lose another election” in the state (https://www.theguardian.com/us-news/2022/nov/02/wisconsin-republican-gubernatorial-candidate-tim-michels).

Court’s Current Radical-Right Majority Is Not “Conservative”!

One thing that particularly irks me in media coverage of the current U.S. Supreme Court is the repeated descriptions of its radical-Right majority as “conservative.” Whatever these people are, they are not “conservative” by any stretch of the imagination. It is the exact opposite of true conservatism to upend a nearly 50-year-old precedent, as the Court has done in Dobbs v. Jackson Women’s Health Organization – the decision that reversed Roe v. Wade and ended the constitutional right of women to control their own bodies – simply because the current Justices would have decided it differently.

It’s even more against any reasonable definition of “conservatism” for the Court to throw out a 100-year-old law from New York state restricting the ability of individuals to carry concealed weapons in public. "Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State's licensing regime violates the Constitution," Justice Clarence Thomas wrote for the court's 6-3 majority. "Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command," Thomas added.

The idea that the Second Amendment gives an “unqualified command” to American governments at all levels to do almost nothing to interfere with an individual’s right to own whatever sort of gun he or she wants flies in the face of the Second Amendment itself. The amendment reads, in full, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In 1939, in a case called United States v. Miller, the Supreme Court ruled that the U.S. government had every right to regulate guns (in this case, sawed-off shotguns) as long as they couldn’t conceivably be used by “a well regulated Militia.”

That was how the American judiciary in general read the Second Amendment until 2008, when in a case called United States v. Heller the Court found for the first time that the Second Amendment conferred on every American the right to own just about any sort of weapon he or she pleased. The majority opinion in Heller was written by the late Justice Antonin Scalia, who did what he was constantly accusing liberal judges of doing: he rewrote the Constitution not in terms of what it actually said but what he, Antonin Scalia, thought it should say.

So, based on a 14-year-old case that upended over a century of legal precedent as well as the plain meaning of the Second Amendment itself, Justice Clarence Thomas read the Second Amendment as giving U.S. governments at all levels an “unqualified command” to allow individuals to own almost any sort of firearm and carry it wherever they want. Whatever you call that, it ain’t “conservative.” It’s why I’ve long wanted to write an article which I would call, “America Needs More Conservatives” – with a subheading, “And Fewer Radical-Right Revolutionaries Posing as ‘Conservatives.’”

Conservatism as a modern-day political philosophy derives from the writings of late 18th-century British scholar, philosopher and politician Edmund Burke. Burke supported the American Revolution – a gutsy thing to do given that his was the country the Americans were rebelling against – but was totally horrified by the French Revolution. And one of the things that horrified him the most about the French Revolution was how the revolutionaries sought to rewrite the most basic rules of society, down to changing the calendar as well as the system of weights and measures.

Burke argued that, even if certain social institutions are not as efficient as they would be if we were deciding them from ground zero, people have grown comfortable with them. They are used to them in ways they won’t be if some supposedly “better” system is imposed upon them, especially by government force. In Burkean terms, the Affordable Care Act – so-called “Obamacare” – was a profoundly conservative program, not only because it was created by a conservative think tank (the Heritage Foundation, which later disowned it) but because it attempted to expand Americans’ access to health care by building on the existing patchwork of private, employer-based insurance and public assistance rather than junking it and starting over with single-payer or another sweeping change.

I remember hearing over a decade ago a broadcast by Right-wing talk-show host and former Mayor of San Diego Roger Hedgecock in which he reported the results of a then-recent poll that showed public confidence in virtually all American institutions – the government (at all levels), the media, public education, the church – at all-time lows. Hedgecock was so gleeful at these results he practically seemed to be having an orgasm on the air. My thought was a true Burkean conservative would have been horrified at results like that and seen them as portending a complete moral breakdown and collapse of such a society.

The other interesting thing about Thomas’s opinion in the New York gun case is his reference to “this Nation's historical tradition.” This was also a factor in Samuel Alito’s opinion striking down Roe v. Wade, in which he said that the provision of the Ninth Amendment of the Constitution that says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” applies only to those rights “consistent with our Nation’s history and traditions.”

The problem with that is that the current Court manority’s understanding of “our Nation’s history and traditions” seems flash-frozen at the end of the 19th century. This was a time when the Supreme Court had ruled in the 1896 case of Plessy v. Ferguson that racial segregation was legitimate as ong as the facilities for white and Black people were “equal” (which they never were). Women not only had yet won the right to vote but they had no property rights or legal existence outside their families or their husbands. In California it was legal to rape your wife until, get this, 1977.

Queer people were either ignored or reviled, and people habitually carried guns through the streets and often fired them at random. If you don’t believe me, check out the 1914 movie Tillie’s Punctured Romance, in which Tillie (Marie Dressler) responds to the news that she’s been disinherited by bringing guns to her house party and firing them at her guests – who respond by fleeing but don’t in any way seem shocked that their hostess is shooting at them.

Maybe some members of America’s extreme radical Right think of these as the “good old days” to which we should want to return. I don’t, and I don’t think many thoughtful conservatives do, either. The current Supreme Court wants to take us back to a new Dark Age in which, as a previous (1857) Supreme Court declared in Dred Scott v. Sandford, “the Black man has no rights the white man is obliged to respect.” Under the current Court majority’s rules, America would become a cesspool in which every time you left your home, you would be threatened with violence and quite likely not come back alive. And 10-year-old girls victimized by rape would be forced to give birth to their rapist’s child – and without any help from the government once that child was born.

That is the radical Right’s agenda for this country, and it’s time to strip the false façade of “conservatism” from the radical-Right revolutionaries who dominate the current U.S. Supreme Court and call them out as the amoral monsters they are.

The Matrix of Stare Decisis

The United States Supreme Court has an enormous power to determine what the rest of the government may or may not do, and one of the ways it has held on to that power (which is, as I noted above, not specifically given it by the Constitution) is through a judicial philosophy called stare decisis. The phrase has its roots in the British common law, and its principle is that courts should almost always decide cases based on the way they have decided similar cases before

Stare decisis is the basis of the law’s obsession with precedents. Individual lawyers arguing a case before virtually any court, from the lowest traffic court to the Supreme Court, will look through their lawbooks for previous cases that support their positions. Often arguments in appellate courts become duels of precedents, as each side tries to cite previous cases in their favor and the other side tries to knock down those arguments and cite other precedents more favorable to them.

Through stare decisis, the American courts in general and the Supreme Court in particular have created a comforting illusion. Though the Supreme Court is appointed by elected politicians – its members are nominated by Presidents and approved by the Senate – thanks to stare decisis, the Court creates a comforting illusion that it’s not a political body. It has persuaded millions of Americans in generation after generation that its decisions are based on immutable legal principles, and therefore are not to be questioned by us mere mortals.

It’s true that sometimes Supreme Court Justices have chafed against the restrictions of stare decisis. The late Robert Jackson, who was not only a Supreme Court Justice but one of the judges at the Nuremberg trials of the leading Nazis after World War II, said stare decisis turned the common law into “a system of living fossils.” But few Supreme Courts in our history have mounted so wholesale an attack on stare decisis and the principle of precedent as the current one with its six-member radical-Right revolutionary majority.

Stare decisis can be compared to the Matrix in the Wachowski siblings’ movies. Like the Matrix, stare decisis is a comforting illusion that the courts in general and the Supreme Court in particular maintains to keep us from realizing the truth: that the Supreme Court is a highly political (and politicized) institution, and it is not as walled off from the conflicts between the executive and legislative branches as it likes to pretend to be.

Just as the rest of the current Republican Party is running roughshod over the Constitution and its protections of voters’ rights in the name of “defending the Constitution” – up to and including staging a violent coup attempt on January 6, 2021 at the U.S. Capitol to keep Donald Trump in power after he lost his bid for re-election – so the current radical-Right Supreme Court majority is running roughshod over the principle of stare decisis even while pretending to abide by it.

This has led to some interesting public clashes between the sitting Justices in speeches to various legal groups this summer, as reported by veteran Supreme Court reporterNina Totenberg on the National Public Radio Web site. https://www.npr.org/2022/10/03/1126041958/supreme-court-new-term. "Decisions have always been subject to intense criticism, and that is entirely appropriate," Chief Justice John Roberts told a legal conference in Chicago, "but lately, the criticism is phrased in terms of ... the legitimacy of the court." Roberts called that "a mistake.”

Quoting John Marshall’s famous remark that it is the duty of the courts in general and the Supreme Court in particular to say what the law is, Roberts added, "[T]hat role doesn’t change simply because people disagree with this opinion or that opinion. … You don't want the political branches telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is."

That drew an unusual rebuke from associate justice Elena Kagan, one of the three hapless, impotent “liberal” justices still left on the Court. In appearances at Northwestern and Salve Regina Universities, Kagan said this summer that stare decisis is a "foundation stone of law," a doctrine of stability that "tells people they can rely on the law." But, Kagan told her Northwestern audience, if "all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown ... then people have a right to say, 'You know, what's going on there? That doesn't seem very law-like.'"

At Salve Regina University in Rhode Island: Kagan said, "The court shouldn't be wandering around just inserting itself into every hot-button issue in America, and it especially shouldn't be doing that in a way that reflects one set of political views over another." Unfortunately, that’s exactly what the current radical-Right Supreme Court majority is doing.

Seeing themselves as ideological warriors o a crusade to exorcize a broad range of rights that were expanded by previous Courts, especially the Warren Court of the 1950’s and 1960’s and the Burger Court of the 1970’s that handed down Roe v. Wade in the first place. As New Yorker writer Corey Robin explained in a July 9 profile of the Court’s ideological leader, Clarence Thomas (https://www.newyorker.com/news/daily-comment/the-self-fulfilling-prophecies-of-clarence-thomas), the radical-Right super-majority on the current Supreme Court in general and Thomas in particular sees the expansion of civil rights and social equality as a horrendous mistake that has gravely weakened society as a whole.

Robin’s article comes as close as anyone else has to explaining the fundamental contradiction that has existed within America’s Right since Ronald Reagan and Jerry Falwell cut their deal for the Moral Majority’s support of Reagan over Jimmy Carter in the 1980 election. This coalition has lasted ever since and won the support of millions of Americans despite its internal inconsistency. It calls for “limited government” when it comes to the economy, opposing any laws aimed at protecting workers,. Consumers and the environment against corporate economic and political power, and at the same time it calls for an expansive “Big Government” to micromanage individuals’ personal lives, especially their sex lives. Robin wrote:

"In a speech before the Federalist Society and the Manhattan Institute which he gave in his second year on the Court, Thomas linked a broad reading of the due-process clause, with its ever-expanding list of ‘unenumerated’ rights, to a liberal ‘rights revolution’ that has undermined traditional authority and generated a culture of permissiveness and passivity. That revolution, which began with the New Deal and peaked in the nineteen-sixties, established the welfare state, weakened criminal law, and promulgated sexual freedom. The result has been personal dissipation and widespread disorder. Workers lose their incentive to labor. Men abandon wives and children. Criminals roam and rule the streets.

“Today, the Left ties itself into knots over whether it should defend sexual minorities, dismantle the carceral state, or fight for social democracy. For Thomas, [opposing] these are three fronts of the same war. To reverse the downward spiral of social decadence and patriarchal decay, conservatives [sic] must undo the liberal culture of rights, starting with the unenumerated rights of substantive due process."

So What Can Be Done to Stop the Rogue Court?

Not much, I’m afraid. I’m writing this phase of the article just days before November 8, the official date of the 2022 midterm elections. As I wrote in my last Zenger’s blog post, the likely outcome of the midterms is a “red tsunami” that will put the Republican Party in control of both houses of Congress and likely set the stage for a Republican return to the Presidency in 2024 – either via Donald Trump or someone much like him, like governors Ron DeSantis of Florida or Greg Abbott of Texas.

With inflation, immigration and crime emerging as the key issues on which Americans are basing their votes – all of which favor Republicans despite precious few indications that they can do any better at managing them than the Democrats – millions of Americans are apparently deciding that reproductive freedom and democracy itself are luxuries they can do without in the hopes of cheaper gas and food prices.

Even if the midterms don’t go as badly for the Democrats as seems likely now, there is still precious little ordinary Americans can do to tame a rogue Supreme Court. The Constitution guarantees justices lifetime tenure. The only way they can be removed is through impeachment, and the two-thirds Senate majority needed to convict anyone in an impeachment trial has proved an insuperable bar to remove impeached Presidents, let alone a Supreme Court justice.

Clarence Thomas is currently flouting norms of judicial conduct by ruling on cases involving himself and his wife, a Right-wing activist who worked with Donald Trump’s last White House chief of staff to overturn the 2020 election. He can thumb his nose at all criticism, secure that nothing can be done to stop him. And in July 2022 Samuel Alito, author of the Dobbs decision that overturned Roe v. Wade, crowed about it in a speech he gave in Rome, Italy at a religious liberty conference sponsored by the Vatican (https://www.msnbc.com/opinion/msnbc-opinion/alito-mocks-outrage-over-abortion-decision-religious-freedom-speech-n1297608).

Alito claimed credit for the end of Boris Johnson’s tenure as prime minister of Great Britain, saying Johnson had “paid the price” for publicly criticizing Dobbs. “I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders — who felt perfectly fine commenting on American law,” Alito said, drawing laughs from the crowd. Alito also said that Dobbs “has a very important impact on religious liberty because it’s very hard to convince people that religious liberty is worth defending if they don’t think religion is a good thing that deserves protection.”

At least twice before in our history has a U.S. Supreme Court majority run so far afoul of public opinion, and the outcomes haven’t been good. The first time was in the 1850’s, when the Court issued Dred Scott v. Sandford, which essentially made slavery legal nationwide. A Righti-wing Court majority set out to end the national debate on slavery by freezing the South’s “peculiar institution” into Constiutional law forever. Abraham Lincoln was explicitly criticizing the Dred Scott decision when he gave his famous “House Divided” speech kicking off his campaign for the U.S. Senate on June 18, 1858 (https://www.abrahamlincolnonline.org/lincoln/speeches/house.htm).

“I believe this government cannot endure, permanently half slave and half free,” Lincoln said. “I do not expect the Union to be dissolved -- I do not expect the house to fall -- but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new -- North as well as South.” The good news is the Dred Scott decision was ultimately overruled. The bad news was it took the carnage of the Civil War to do it.

The other time in U.S. history when the Supreme Court set itself far against public opinion and the popular will was in the 1930’s. President Franklin Roosevelt and huge Democratic majorities in Congress passed fundamental reforms to the American economy and political system aimed at pulling the nation out of the Great Depression – and a radical Right-wing majority on the Supreme Court kept striking them down as unconstitutional.

Roosevelt got so disgusted with the antics of the Supreme Court that he used the political capital of his landslide re-election in 1936 to push a bill to expand the Court. The Constitution doesn’t specify the number of Justices, but throughout our entire history it’s been either seven or nine – and the last expansion from seven to nine was made in 1862 by Lincoln and a Republican Congress to dilute the power of the reactionary pro-slavery justices who had handed down the Dred Scott decision.

Unfortunately, Roosevelt got exactly nowhere with his plan. Republicans and Right-wing Democrats denounced it as “court-packing” and gave FDR his first major political defeat. The crisis passed partly because the swing justice, Owen Roberts, started voting to uphold instead of nullify New Deal legislation – it was referred to in the 1930’s as “the switch in time that saved nine” – and partly because Roosevelt’s presidency lasted so long he was able through sheer attrition to replace the aging cadre of justices with progressives.

In a depressing colloquy between MS-NBC host Rachel Maddow and legal scholar Dahlia Lithwick on October 3, the start date of the Supreme Court’s current term, Lithwick said point-blank that addressing the question of a rogue Supreme Court requires major constitutional changes. “The Senate has to be reformed,” Lithwick said. “The Electoral College has to be reformed. We have to think about massive reforms to the Supreme Court.”

Alas, the kinds of sweeping changes Lithwick is calling for are made impossible by the Constitution itself and the sheer weight of American tradition. Even when the Democrats had at least nominal control of the Presidency and both houses of Congress – which is almost certain to end after November 8, 2022 – they didn’t take up any of the measures that could have been taken under the Constitution to rein in the power of a rogue Supreme Court.

Just as the only way to reform the Senate under the Constitution (aside from abolishing the filibuster, which as I noted above is not provided for ini the Constitution) would be to add more states – which is why Senate Republican leader Mitch McConnell, in a speech just before the 2020 Republican convention, made a point of declaring his unalterable opposition to making the District of Columbia a state (because it would elect two Democratic Senators) – the only way to undo the successful court-packing by Donald Trump and Mitch McConnell would be to add more justices.

And if Franklin Roosevelt wasn’t able to do that, even coming off a landslide re-election victory in 1936 with broad popular support and huge partisan majorities in Congress of which today’s Democratic Presidents can only dream, Joe Biden certainly wasn’t going to be able to do it. Biden took office with just razor-thin majorities in both houses of Congress and two Senate DINO’s (Democrats in name only), Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who double-handedly sabotaged virtually all of Biden’s agenda by refusing to compromise on scrapping or amending the filibuster.

The years 2020 to 2022 are going to go down in American history as the time in which the Democratic Party squandered its last opportunity to remain competitive in an era in which, thanks largely to the radical-Right super-majority on the current Supreme Court and its gradual destruction of the 1965 Voting Rights Act, Republicans will dominate our politics now and for the foreseeable future. America’s future may quite likely be like Russia’s, China’s or Iran’s present: an anti-democratic government suppressing what few attempts at resistance there are by the use of overwhelming force.