"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.

The 2022 Midterms: Bracing Yourselves for the "Red Tsunami"

by MARK GABRISH CONLAN

Copyright © 2022 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

”Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
– Benjamin Franklin, November 11, 1755

When former White House strategist and long-time Donald Trump confidant Steve Bannon showed up in Washington, D.C. to be sentenced to four months in jail and a $6,500 fine for refusing to testify before the House Select Committee investigating the January 6, 2021 riot at the U.S. Capitol, he couldn’t have been happier. “Remember this November when the Biden administration ends?” Bannon gloated. “Their judgment day is on 8 November.”

Bannon is almost certainly right. The midterm elections on November 8, 2022 are looking more and more like not only a pro-Republican “red wave” but a red tsunami. At this writing, less than two weeks before the midterms, the Republicans appear poised for a mega-sweep that will make 1994 and 2010 look like great years for Democrats by comparison. Those of us who hoped that Joe Biden’s victory over Donald Trump in 2020 had meant at least a reprieve from the threats to democracy itself posed by an increasingly authoritarian, autocratic Republican Party are in for a rude awakening. The “red tsunami” will almost certainly make Biden a one-term President and pave the way either for Trump’s return to the White House in 2024 or the election of an equally creepy alternate Republican like Florida Governor Ron DeSantis or Texas Governor Greg Abbott.

And what is the reason for this abrupt turn in America’s political direction? In the immortal words of James Carville, who masterminded Bill Clinton’s successful campaign against then-President George H. W. Bush in 1992, “It’s the economy, stupid.” Bush, Sr. had had a huge leap in his popularity at the end of the first U.S.-Iraq war in 1990-91 (though he chose to leave Iraqi dictator Saddam Hussein in power because he wanted Iraq to remain a Sunni Muslim-ruled country to balance the Shi’a Muslim-controlled Iran), but a nose-diving recession in the U.S. economy doomed his chances.

When Bush campaigned for re-election in New Hampshire in 1992, he was greeted with signs reading, “Saddam Hussein still has a job. Do you?” He was widely ridiculed when video footage revealed he didn’t know how price-scanning machines at grocery stores worked. Carville and the others running Clinton’s campaign were able to portray Bush as an out-of-touch rich elitist with no idea of ordinary Americans or their problems. Coupled with a third-party challenge by self-made entrepreneur H. Ross Perot, which probably took enough votes away from Bush in several key states to hand the election to Clinton, Bush lost his re-election bid and withdrew to a quiet if sometimes cranky ex-Presidency.

Today the American economy is beset by relentless inflation, especially in food and gasoline prices. Americans keep getting hit by price increases and are having a harder time making ends meet than they did when Trump was President. Gas prices are especially difficult for an incumbent administration because they’re posted in big numbers outside gas stations, so even if you don’t directly consume gas yourself (as I don’t, since I’ve never had a driver’s license), you’re aware of how astronomically its price has risen.

It’s true that President Biden is doing what little he can to lower gas and food prices. He’s released oil from the U.S. Strategic Petroleum Reserve to try to bring costs down by increasing gas supplies. It’s also true that there’s little a President can do to lower food and fuel prices. Those are controlled by private markets – unlike most countries that produce as many petroleum products as we do, the U.S. has no major publicly owned oil company – and, as Biden has explained on many occasions, world oil prices are rising for many reasons, including Russia’s war on Ukraine.

Biden also can tout good things that have happened to the American economy on his watch. Unemployment is down to historic lows, and wages are rising as the pandemic phase of COVID-19 draws to a close. And he’s been extolling the features of the Inflation Reduction Act, which he and Congressional Democrats passed with zero Republican support. Among other things, it will fund development of alternative energy sources to give America a badly needed recovery from its addiction to fossil fuels. It will also cap annual prescription co-payments for seniors on Medicare to $2,000 per year and cut the cost of insulin to $35 per dose. All these things will help many Americans pay their bills, and so will Biden’s plan of partial forgiveness of U.S. student loans. But, as James Carville also said, “If you’re explaining, you’re losing.”

Polls Show Voters Favor Republican Issues

U.S. voters don’t feel good about the economy. And they’re reminded of it every time they buy gas or groceries. According to a recent poll conducted by Louis Harris in conjunction with the Center for American Political Studies (CAPS) at Harvard University, reported on TheHill.com, (https://thehill.com/homenews/campaign/3693810-inflation-crime-immigration-top-voter-concerns-ahead-of-midterms-poll/) shows that voters’ top concerns ahead of the midterms are the issues Republicans are strongest on: inflation, immigration and crime.

According to Julia Manchester’s report on this poll on TheHill.com, “Seventy-four percent of voters surveyed named inflation as ‘very important,’ while 22 percent said it is ‘somewhat important.’ Sixty-eight percent, meanwhile, said crime is a ‘very important’ issue, while 26 percent said it is only ‘somewhat important.’ And 59 percent of voters called immigration a ‘very important’ issue while 31 percent said it is ‘somewhat important.’”

As for the issues the Democrats were hoping would save them from a Republican bloodbath on November 8 – the Supreme Court’s reversal of the 1973 Roe v. Wade decision on abortion and women’s rights, and concerns over the fate of American democracy itself as the extent of the Trump administration’s attempt to remain in power no matter what became chear – those issues are simply not resonating with voters the way inflation, immigration and crime are. “Abortion was ranked fourth in the new survey, with 55 percent calling it a ‘very important issue,’ and 29 percent saying it is ‘somewhat important,’” Manchester wrote.

A recent New York Times/Siena College poll (https://www.nytimes.com/2022/10/17/us/politics/republicans-economy-nyt-siena-poll.html) had even gloomier news for Democrats. Only seven percent of the respondents in that poll named abortion as the most important issue facing the country, and only five percent said it was the Republican threat to democracy. A combined 44 percent of the Times respondents rated either “the economy” or “inflation” as their top concerns – and in the current moment those amount to the same thing. That number was up considerably from the 36 percent in the same poll in July.

The poll also found that non-party-aligned women have overwhelmingly shifted their support from Democrats to Republicans, largely over concerns about the economy and negative feelings towards President Biden. “In September, they favored Democrats by 14 points,” New York Times reporter Shane Goldmacher reported on October 17. “Now, independent women backed Republicans by 18 points — a striking swing, given the polarization of the American electorate and how intensely Democrats have focused on that group and on the threat Republicans pose to abortion rights.”

And it’s not just poll results, either. Washington Post economics reporter Ahba Bhattarai appeared on the October 21 PBS program Washington Week and said, “I spent the week talking with voters around the country. And I was really struck by how many long-time Democratic voters said that they were suddenly having to make these decisions that they never thought they would be making. They're wondering if they should prioritize the economy or abortion rights, gun control, these issues that are all very important to them. "

"But they feel like they have less and less of a choice when they are struggling to pay for groceries and pay for electricity and all these other essentials that have been going up in price. As one woman in Nashville told me yesterday, we can no longer afford to prioritize our principles over inflation. And so they're really rethinking their entire belief system in some cases.” In other words, the kinds of voters Democrats were hoping would at least stanch some of the bleeding in their support – the liberal pro-choice, pro-democracy voters – are deciding that democracy and choice are literally luxuries they can no longer afford.

The sweep towards Republicans has been most pronounced in what pollsters call the “generic ballot” – the direct question to respondents about which party they’d like to see control Congress. In just one week, according to MS-NBC political reporter Steve Kornacki, the Republican lead on the generic ballot leaped from 0.8 to 3.1 percent. Other polls have it even higher; the New York Times/Siena College poll has it at 4 percent and the Harris/Harvard poll has the pro-Republican margin at a whopping 6 percent.

This is even worse news than it seems at first glance because I’m convinced the generic ballot actually underestimates Republican strength. Due to partisan gerrymandering – which the Republicans have used far more effectively and aggressively in the states they control than the Democrats have – the Republicans are almost certain to do better in the actual House of Representatives races than the results of the generic ballot show.

Republicans Don’t Need to Offer Solutions

What makes the midterm landscape even more frightening for Democrats is that Republicans aren’t saying much of anything about what they would do differently to address the problems of inflation, the economy, immigration and crime. And to the extent they are talking about what they would do differently, it’s about things that would literally take money away from senior citizens (a bedrock Republican constituency) and others. Already House Republican leader Kevin McCarthy has announced that he will hold raising the debt ceiling hostage and demand that Biden and the Democrats agree to massive cuts in Social Security and Medicare.

Republicans aren’t offering alternatives, but they really don’t have to, either. As the late political scientist V. O. Key wrote in his last book, The Responsible Electorate (1966), American voters do indeed make decisions on political issues, but “retrospectively and negatively.” That is, they vote on past performance rather than future promises, and they vote against what they don’t want ratner than for what they do want. Given the way food and (especially) gas prices have soared under the watch of Biden and the Democrats, American voters are about to hand control of Congress to the Republicans based on nothing more than the vague hope that at least they can’t make things worse – though they can.

Senator Rick Scott (R-Florida), chair of the Republican Senate Campaign Committee, has pledged that a new Republican-controlled Congress will “sunset” the Social Security program. That means it would automatically die unless extended every five years. He’s also promised to make the Trump tax cuts for the richest Americans permanent and impose a minimum income tax on all Americans of $100 for singles and #200 for couples. Scott’s plan would make Social Security benefits taxable and, according to Dan Beyer of the Democrats’ Joint Economic Committee (https://www.jec.senate.gov/public/_cache/files/008860e7-93bd-47dd-a786-fbfdfee24868/jec---scott-plan-analysis---april-2022---final.pdf), would raise taxes for 43 percent of Americans and increase the tax burden on middle-class taxpayers by an average of $450 per year.

It’s not only on economic issues that Republicans are offering policy proposals that are decidedly unpopular. Senator Lindsay Graham (R-South Carolina) has proposed a nationwide ban on virtually all abortions, despite the vote in Kansas (not exactly a liberal bastion) last August in which a ballot measure to remove abortion protections from the state constitution lost by nearly 20 points. They’re pledging to repeal the Affordable Care Act that guaranteed health coverage to millions of Americans, and they will likely reverse the Democratic legislation to cap the costs of prescription drugs and allow Medicare to negotiate with pharmaceutical companies for lower drug prices.

And while Republicans claim to be the party that’s “tough on crime,” they have almost totally blocked any government action to keep guns out of the hands of potential criminals. Instead they’ve locked themselves into the agenda of the National Rifle Association and other even more extreme gun-rights groups. Their current radical-Right revolutionary super-majority on the U.S. Supreme Court seems determined to read the Second Amendment so broadly that even the minimal gun regulation bill that squeaked through the Senate last summer will likely be declared unconstitutional.

Indeed, one of the few things that might actually turn back the tide of the “red tsunami” is overconfidence. Instead of pulling back on issue demands that polls show are unpopular with the American people, the Republicans are actively and proudly embracing them. Obviously they are hoping that they can claim a mandate not only for the economic parts of their agenda (which there really aren’t any, aside from cutbacks for everyone else to give tax breaks to the rich) but for everything else as well.

This gives the Democrats a potential opening for the last two weeks of the campaign – but only if they’re bold and assertive enough to use it. I think Biden should mention the Republicans’ tax policies, including the “sunsetting” of Social Security, the cuts in Medicare and the “minimum tax” plan that will raise taxes on over 40 percent of Americans in every stump speech he makes between now and the midterms. Instead of talking about reproductive choice or the future of American democracy, he should be saying that Republicans have promised to take money away from senior citizens who have paid into Social Security all their working lives so they can fund huge and unnecessary tax cuts for the super-rich.

Biden and the Democrats should also take advantage of the two-month “lame duck” session between November 8 and January 3, 2023, when the new Republican Congress will take power, to get rid of the insanity of the “debt ceiling” altogether. As Eric Lavitz explained in a New York magazine article called “Return of the Hostage Takers” (https://nymag.com/intelligencer/2022/10/joe-biden-gop-debt-ceiling.html), under Senate rules they couldn’t abolish the debt ceiling but they could raise it so high it wouldn’t be reached for decades or even centuries.

But all this would take a major push from President Biden, and he’s already told reporters that getting rid of the debt ceiling would be “irresponsible.” “In so doing,” Lavitz wrote, “he affirmed the GOP’s fiction about what raising the debt ceiling actually means, while leaving the economy at its mercy. If the Republican Party’s commitment to brinksmanship threatens to upend the global financial system, the president’s nostalgic attachment to congressional conventions threatens to do the same.”

Republican Control Will Be Permanent

And once the Republicans regain control of the U.S. Congress in 2022 and the Presidency in 2024, they have no intention of ever letting themselves be voted out of it again. One reason America’s experiment in republican self-governance has lasted as long as it has – nearly 250 years – is that losing candidates acknowledged their defeat and used the time until the subsequent election to regroup and try to win the next time.

But today’s Republicans have no intention of either acknowledging defeat or accepting it. They are mounting a full-court press to make sure that they will never again lose elections, no matter what the will of the people is. They have targeted just about every office that has a role in administering elections, from the lowliest election clerks to state secretaries of state, the officials that actually run elections in each state.

I remember as a child being confused about what a state secretary of state actually did. I knew what the U.S. Secretary of State did – he (or, more recently, she) ran America’s relations with other nations. But since U.S. states don’t have foreign policies, it took me years before I realized that, among other things (including registering corporations), state secretaries of state run elections in their states and have broad latitude to determine how people vote and how their votes are counted.

This year, Republicans are putting up candidates for secretary of state all over the country – and in at least four critical swing states, Minnesota (Kim Crockett), Arizona (Mark Finchem), Michigan (Kristina Karamo) and Nevada (Jim Marchant), Republicans are either leading in the polls or the results are within the statistical margin of error. Marchant’s program is especially interesting because, among other things, he’s demanding an end to early voting and mail-in ballots, an end to machine counting of ballots, and an insistence that the results on election day are final regardless of how many ballots are still outstanding. If these rules had been in effect in the so-called “swing states” in 2020, Donald Trump would still be President.

Republicans are also mounting both public and private efforts to intimidate both voters and election clerks. In Florida, Governor Ron DeSantis formed what he called an “Election Integrity Task Force” to send police to the homes of former felons who were supposed to have had the right to vote restored under a 2018 ballot measure passed by over 60 percent of Floridians. DeSantis made the program so intimidating and scary that even the cops sent out to serve the warrants on people accused of having voted illegally often had no idea what the warrants were about and couldn’t explain them to the people they were targeting. The purpose was clearly to intimidate African-Americans in particular and scare them away from the polls this November.

Other intimidation tactics include the private posses being organized by militia groups and individuals in Arizona and elsewhere to park trucks outside election drop boxes. Often the people driving the trucks are wearing military armor and carrying guns. Similar groups are making calls all over the country threatening the lives of election workers for having certified the “wrong” winner – Biden instead of Trump – in 2020. The intimidation has become so serious it’s estimated up to 30 percent of election workers have quit or taken early retirement rather than risk staying on the job under threats to their and their families’ lives And as these people leave, they’re generally being replaced by Republican operatives pledged to do whatever it takes to ensure the “right” election outcome next time.

In short, in states Republicans control they’re using the same tactics Southern Democrats used to nullify African-American political participation. Between the end of Reconstruction in 1877 and the passage of the Voting Rights Act in 1965, Blacks were essentially locked out of politics through electoral sabotage, inability to register, being subjected to bizarre tests white voters didn’t have to pass, economic pressure in terms of being threatened with losing their jobs, and when all else failed, night rides by the Ku Klux Klan and other vigilante groups either threatening or actually committing violent assaults against Blacks who dared try to vote.

This was something that was supposed to have been part of American history, but beginning in 2013 the U.S. Supreme Court started picking the Voting Rights Act to pieces and ruling major parts of it unconstitutional. With the great reversal of America’s two major political parties in their positions on civil rights in general and Black rights in particular – the Republicans, once the ”party of Lincoln,” took up the mantle of racism and white supremacy, while the Democrats, once the party of slavery, segregation and the Klan, became the party of racial equaility – Republicans are embracing a frankly racist agenda that aims to reduce Blacks and other voters of color to second-class citizenship.

Things will get even worse if the U.S. Supreme Court rules for the North Carolina state legislature this year in a case called Moore v. Harper. For over a decade the Republican-dominated legislature in North Carolina has been trying to draw legislative and Congressional districts that will systematically minimize the ability of Black voters to elect Black candidates to those offices. They’ve been stymied by the North Carolina Supreme Court, which has regularly thrown out their maps as violating the North Carolina state constitution and its clauses barring voter discrimination based on race.

All that could change if the current radical-Right revolutionary majority (which is routinely called “conservative” but it is anything but that) adopts the so-called “independent state legislature theory” advanced by the Republican North Carolina legislature in Moore v. Harper. This is a radical interpretation of Article I, section 4 of the U.S. Constitution – “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” – that holds it gives absolute power to state legislatures to do whatever they want with regard to elections.

Under the “independent state legislature theory,” state legislatures could not only create their districts any way they liked, no one – not federal or state courts, and not state governors – would have the power to say them nay. This would also give state legislative majorities the power to set aside election outcomes either before or after the elections actually occurred. In 2020 Donald Trump and his attorneys appealed to legislatures, governors and other officials in states with Republican legislatures which had voted for Joe Biden to reverse these results and declare Trump the winner. In 2024, if the “independent state legislatlre theory” becomes U.S. constitutional law, they would have the power to do precisely that.

Until the 2000 election, the first since 1888 in which the outcome of the Electoral College diverged from the popular vote, most Americans assumed that they had a Constitutional right to vote for President, Since then, they’ve assumed that at least they had the right to vote for their state’s representatives to the Electoral College that actually picks the President. Now Presidential elections, if they continue to be held at all – and nothing in the Constitution requires them; Article II, section 1 says merely that Presidential electors shall be appointed “in such Manner as the Legislature thereof may direct” – would just be popularity polls and the state legislatures could appoint whichever electors they wanted.

The result would be a self-perpetuating one-party rule by the Republicans. Thanks to their current advantage in state legislatures, they could form their districts in such a way that they could never be voted out of office again. Republicans have been honest about what they wanted well before Donald Trump. In the early 2000’s Karl Rove, George W. Bush’s political strategist, said his goal was to win what he called “full-spectrum dominance” for the Republican party, after the doctrine of overwhelming military superiority with which the Bush II administration fought the second U.S.-Iraq war. But, as with so many of the negative aspects of American politics, Trump and his minions have turbocharged it.

Character Doesn’t Matter (If You’re a Republican)

One of the odder aspects of the current American political system and the different ways members of the two major parties vote is that, at least if you’re a Republican, issues of personal character have virtually ceased to matter. Despite their claims to be the party of “family values,” Republican voters have shown zero interest in holding their candidates to any standards of accountability in their personal behavior.

When Donald Trump’s infamous Access Hollywood tape came out in October 2016, a few old-style Republicans feared that Trump’s boasts of his ability to assault women sexually and get away with it because “when you’re a star, they’ll let you do anything” would sink his candidacy. There were even a few calls for him to withdraw from the race. Instead, if anything, it actually helped him. A lot of voters, especially men, thought it added to Trump’s credentials as a “real guy” to whom they could relate.

In 2012 Todd Akin, Republican candidate for U.S. Senate in Missouri, made an infamous statement that the reason he opposed allowing abortions in cases of rape or incest was that such pregnanties were “really rare. He added, “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.” Akin’s opponent, former Democratic Senator Claire McCaskill (who beat Akin but lost the seat in 2018 to an even creepier Republican, Josh Hawley), said recently on MS-NBC that if a Republican made a similar comment today, the party would be giving parades for him.

More recently, U.S. Senate candidate Herschel Walker (R-Georgia) has managed to survive bizarre allegations against him with barely a blip in his poll numbers. Not only did he pay for a then-girlfriend to have an abortion despite his current support for a nationwide ban on all abortions, he got her pregnant a second time, again offered her money for an abortion, and broke up with her when she insisted on having his child.

While campaigning against “absent fathers” in the Black community – men who’ve got women pregnant and then did nothing to help support their kids – Walker has had four children by four different women, paid only the legal minimum in terms of child support and has almost never visited them. But Georgia’s Republican voters couldn’t care less. To them, Walker is a “good Black man” who will vote the way Donald Trump and Republican Senate leader Mitch McConnell tell him to. While continuing to use allegations – founded or not – as political weapons against Democrats, Republicans give their own candidates a free pass.

It’s amazing that the party that claims the mantle of “family values” is also the only major party which has elected Presidents who divorced and remarried – the twice-married Ronald Reagan in 1980 and the thrice-married Donald Trump in 2016. Democrats care a lot more than Republicans about the personal lives of their candidates, especially their sex lives and the way they treat women. If Elliot Spitzer, Eric Schneiderman, Anthony Weiner, Andrew Cuomo, Al Franken and Bob Filner had been Republicans, they’d almost certainly still be in political office today.

What Will Republicans Do with Congressional Majorities?

It’s not hard to guess. Republicans have already said they will hold the world economy hostage by threatening not to raise the debt ceiling unless President Biden caves and agrees to deep cuts in Social Security and Medicare benefits. So far Biden has vowed to hold the line against such tactics, but he may not be able to. If it comes to a choice between agreeing to Republican demands to slash Social Security and Medicare and allowing the world’s economy to melt down on his watch, Biden will almost certainly bite the bullet and accept massive cuts in Social Security and Medicare as the lesser of two evils.

Indeed, it’s quite likely the Republicans will resort to struggles over the debt ceiling and periodic shutdowns of the U.S. government as leverage again and again to force Biden to make enormous concessions to them. They once again will likely try to repeal the Affordable Care Act (so-called “Obamacare”) and will almost certainly push through a nationwide ban on virtually all abortions. Their motive seems to be not only to force Biden to make concessions but to humiliate him and castrate him politically. They also want to demoralize Democratic voters by ensuring that the country is run by Republicans who serve Republican ideals whether that’s what voters want or not.

Previous Republican Congresses eventually backed away from repeated games of political chicken over the debt ceiling because their real constituency – the mega-rich whose huge donations, both to the party itself and to dark-money political action committees (PAC’s) that support it – stood to lose too much money themselves from the total meltdown of the world economy a U.S. default on its debts would create. But the current crop of Republicans may be just crazy enough to do it anyway – and there may be enough radical-Right donors to keep the party in business even if more rational corporate types back off.

Democrats didn’t help their cause any by deliberately intervening in Republican primaries to sink more moderate candidates and ensure the real crazies got the Republican nominations in state after state, district after district. I’m old enough to remember how spectacularly that styrategy backfired in 1966, when Californla Governor Pat Brown was preparing to run for a third term and knew it would be an uphill battle. So he sought to neutralize the Republican he was most worried about, moderate San Francisco Mayor George Christopher, and instead secretly helped the faded movie actor whom Christopher was running against in the primary. In so doing, he loosed Ronald Reagan on the political world.

So when Biden – who has lamented the increasing nastiness in American politics and looks backwards to the days when he could maintain cross-party friendships with Republicans and Right-wing Democrats like Strom Thurmond and James Eastland despite their political differences – looks for “moderate” Republicans in Congress with whom he can make deals, there won’t be any. The House and Senate Republican caucuses will be filled by all the crazies the Democrats helped elect, thinking they’d be easier to beat in the general election, and they will proudly and unashamedly take the American economy to the brink of disaster again and again to force Biden and the remaining Democrats to bend to their will.

And the poison of Republican control of Congress will spread beyond America’s borders. One of the biggest losers if the Republicans retake Congress will be Ukraine. Already Kevin McCarthy, House Republican leader who will almost certainly be the next House Speaker of the Republicans take power, has said there will be “no blank check” on funding Ukraine in its defensive war against Russia – which understandably freaked out Ukrainians, who realize their only defense against total annihilation by Russia is the high-tech weaponry the U.S. and other Western countries are sending them.. Though some Republicans still seem supportive of Ukraine, Donald Trump, the leader of their party in all but name, has made it clear where he stands. When Russia launched its invasion of Ukraine in February 2022 Trump called Russian dictator Vladimir Putin a “genius” for invading Ukraine.

Biden has tried to portray the war in Ukraine as a foundational struggle to preserve democracy worldwide, But given how openly Republicans have embraced autocracies and dictatorships both in the U.S. and elsewhere – not only by supporting laws making it harder for U.S. citizens, especially poor and working-class people and people of color, to vote but also by inviting dictators like Victor Orbán of Hungary to the U.S. Constervative Political Action Conference (CPAC) – it’s clear that in the struggle between democracy and autocracy, they’re on the side of the autocrats.

Another thing Republicans will do once they take back Congress is launch an endless series of so-called “investigations” of Biden, his scapegrace son Hunter and just about everybody in his administration. Already they’ve talked about calling various administration figures, including Attorney General Merrick Garland and retiring director of the National Institute of Allergy and Infectious Disease Dr. Anthony Fauci, to testify before House and Senate investigatory committees.

Part of this seems to be sheer revenge – the Republicans saying to the Democrats, “You investigated us, and now we’re going to investigate you.” It’s almost certain that a Republican Congress will impeach President Biden to get back at the Democratic House of Representatives for twice impeaching Donald Trump. One dreads the thought of Republicans in Congress calling “witnesses” like MyPillow CEO Mike Lindell to testify at length about his alleged (and phony) “statistics” proving that Trump really won the 2020 election.

It’s also virtually certain that once Republicans retake Congress, any attempts to prosecute Donald Trump and his associates for their actions before, during and after the January 6, 2021 riot on the U.S. Capitol will end. It’s likely the Republican Congress will attach a rider to the Justice Department’s budget forbidding it from mounting any prosecutions of Trump or any other people who allegedly committed crimes on January 6, 2021 but were not themselves present at the riot. One of the political imperatives of the current Republican Party is to defend Donald Trump at all costs, and to ensure that he keeps his current immunity from any and all consequences of his political and personal actions.

A Republican House will almost certainly impeach Biden, and probably Merrick Garland and anyone else in the government who dares do anything against Donald Trump. So far there have been four Presidential impeachment trials in American history, and I’ve been alive during three of them: the 1999 trial of Bill Clinton for allegedly lying about his affair with Monica Lewinsky and the 2020 and 2021 trials of Trump over his attempt to blackmail the Ukrainian government to give him dirt on Hunter Biden and his role in the January 6, 2021 riot.

Like Clinton and Trump, Biden will almost certainly avoid conviction because of the Constitutional requirement that two-thirds of Senators vote to convict a President and remove him from office. Even the shrunken Democratic Party that will survive the “red tsunami” will almost certainly have enough Senators to block Biden’s conviction and removal – but given the power of Congressional Republicans and the media machine they have at their backs to shape the perceptions of their base voters, Biden will be, as U.S. Senator John Thune (R-South Dakota) confidently predicted at the start of the midterm campaign, a “half-term President,” unable to accomplish anything and a political “dead man walking” as he limps along towards a Jimmy Carter-style re-election debacle.

Michael Flynn: Influential Right-Wing Leader Seeks an American Theocracy

by MARK GABRISH CONLAN

Copyright © 2022 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Alas, just after showing Henry Louis Gates, Jr.’s exalting episode of his Making Black America series on October 18, KPGS showed a swary Frontline documentary called “Michael Flynn’s Holy War,” about the fascinating history of retired general Michael Flynn, Sr. Flynn was raised in Rhode Island by a hard-core Roman Catholic family who began as Democrats but switched ideological sides because of the Catholic church’s opposition to abortion and the Democratic Party’s eventual embrace of the pro-choice position. Flynn remembers hos mother running for local office in Rhode Island (unsuccessfully) and drafting him to be part of her campaign – as my mother drafted me in activism at a tender age, albeit on the other ideological side – and the woman who reported and narrated this documentary, Michelle R. Smith of the Associated Press, managed to get at least the semblance of an interview with Flynn himself as well as lengthier conversations with Flynn’s brother Joe, who’s fully on board with Michael’s politics. “When I first saw Michael Flynn speak to an audience, it was hard to reconcile who he once was with who he had become,” Smith said at the outset of the program. “A retired three-star general once hailed as an intelligence genius. Today, he’s touring the country as a leader in a far-right movement trying to put its brand of Christianity at the center of civic life and institutions.”

Joe Flynn is quoted in the program as saying, “This country was founded on Judeo-Christian values” though it’s all too clear, especially from their endorsement of extreme Right-wing Christinas’ “end-times” prediction that as soon as Christ returns the remaining Jews will be given the option – either convert immediately to Chritianity or end up doomed for all eternity to Hell – they regard Jews as at best junior partners and at worst the scum of the earth. Joe Flynn continued, “I think [their mother] Helen would be proud of the activities that we're involved in. I think Christians are very involved in the conservative movement. It's no different than it was 30, 40 years ago, especially with Reagan.”

Michael Flynn started out as a member of the Army’s elite 82nd Airborne unit of paratroopers giving aid and comfort to the Right-wing contras Reagan funded during the 1980’s in Nicaragua and other countries in Central America and the Caribbean. Then during George W. Bush’s so-called “global war on terrorism,” Flynn becams a commander in Iraq and did intelligence for the the so-called Joint Strategic Operations Command (JSOC), which targeted raids on civilian homes in search of suspected terrorists, The problem was that Flynn insisted on ordering and carrying out the raids so quickly he didn’t stop to vet the intelligence on which they were based – which meant, inevitably, that the raids netted and often killed a lot of innocent civilians.

As Flynn got involved in the wars in Iraq and Afghanistan, so-called “radical Islam” replaced Communism as the all-embracing enemy America faced abroad, while Flynn’s always strong belief in a radical-Right version of Christianity led him to believe that America is full of domestic enemies who need to be fought to the death, if need be, to redeem the U.S. for God and a peculiar interpretation of the Constitution that countenances events like the January 6, 2021 riots which were quite obviously an attempt to disrupt and prevent the peaceful transition of power after a Presidential election. In fact, one of the peculiarities of the modern American Right is the Orwellian doublethink that allows them to pose as defenders of the Constitution while participating in frankly unconstitutional attempts to reverse the outcome of an election because it didn’t turn out the way they wanted it to, and to resort to violence when their efforts politically and judicially met with failure. Michael Flynn doesn’t come right out and say that Democrats are the agents of Satan, but he does say things like, “The enemy of 1984 is 1776!” It’s also clear he and his followers think the Democratic Party, if left in power, will turn America into Venezuela or Nicaragua, a failed state witn an increasingly miserable and impoverished population – which makes it ironic that among the demands the Republican Party’s candidates for the House and Senate are currently making include big cuts to Social Security and Medicare.

Michael Flynn’s America would be a Christian theocracy in which secular lawmakers would be ruled by his sort of Right-wing faith, including an end to women’s bodily autonomy (ironically, Iranian women are putting their lives on the line for just this right, while the American Right, which claims to be against Iranian-style “radical Islam,” wants to impose the same sort of faith-based regime on U.S. women!) and, of course, an end to Queer rights as well (even though nothing Flynn himself said in the Frontline documentary mentioned Queer people one way or the other, but being anti-Queer comes with the territory)and mayve even an Iranian-style “morality police” force to punish men who have sex with men, women who have sex with women, and women who seek, let alone get, abortions. While the Black church has its own set of problems – it, too, is anti-Queer and years ago I attended a service at a Black church in which a well-known minister preached against the theory of evolution and said it had destroyed all morality – nonetheless the Black church has been a leading voice of liberation, especially for Black people themselves, while Michael Flynn’s white church is an instrument of authoritarianism and domination.

Thirteen Senate, Governor and Congress Candidates Who Need Your Help!

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Michelle Vallejo (U.S. House, District 15, Texas), https://michellefortx15.com

Donald Trump IS Above the Law!

Frontline’s "Lies, Politics and Democracy" Episode Highlights Trump’s and His Followers’ Ongoing Threat to the American Republic

by MARK GABRISH CONLAN

Copyright © 2022 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Donald John Trump really IS above the law!

He bestrides the world like a colossus, doing whatever he pleases and wrecking everything he touches in his wake. Trump is what Superman would have been if his creators, Jerry Siegel and Joe Shuster, had gone ahead with their original plan to make him a super-villain instead of a superhero. Trump stands firmly for lies, injustice and the un-American way. Those of us who aren’t part of his cult look at him the way a lot of decent Germans in the 1930’s probably looked at Hitler: “Who IS this guy? I thought we were better than this!”

By one of the macabre coincidences that have become all too common in the Age of Trump, PBS aired the latest episode in their long-running documentary series Frontline on September 5, the same day a Trump-appointed federal judge in Florida named Aileen Mercedes Cannon (how appropriate that her middle name is the same as Hitler’s favorite brand of car!) gave Trump everything he had asked for in the case of the documents the FBI seized from his personal residence/golf club at Mar-a-Lago, Florida.

Judge Cannon not only granted Trump’s request for a so-called “special master” to review all the seized documents, she ruled that he should check the documents not only for possible violations of attorney-client privilege but also for so-called “executive privilege.” She wasn’t fazed by the fact that Donald Trump is no longer President of the United States, and the current President, Joe Biden, specifically waived executive privilege in connection with these documents.

Judge Cannon also ruled that Donald Trump has special privileges due to his status as an ex-President, especially an ex-President who because he only served a single term is not barred by the 22nd Amendment from running for the office again. "As a function of Plaintiff's former position as President of the United States, the stigma associated with the subject seizure is in a league of its own," Judge Cannon wrote. "A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude."

While Judge Cannon didn’t give Trump everything he had asked for – including a guarantee that any documents not needed by the government for its investigations be returned to him – the ruling was such a major giveaway for Trump that even the judges of the Eleventh Circuit Court of Appeals drew back from some of it. Even though two of the judges on the three-judge panel that heard the appeal were Trump appointees, they ruled unanimously that Trump had no legal right to own the estimated 100 classified documents seized by the FBI.

"It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in 'exceptionally grave damage to the national security,'" the three-judge panel stated in a 20-page opinion. "Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised."

“Sources and methods” are a Holy Grail to the intelligence community. No country in the world that has an intelligence service wants other countries’ officials to know who we are spying on, how, when and with what sources of data – especially human beings who may literally be risking their lives to provide us with information. As the Eleventh Circuit’s three-judge panel wrote in their opinion, “[W]e cannot discern why the Plaintiff [Trump] would have an individual interest in or need for any of the one hundred documents with classification markings,"

Things didn’t get any better for Trump when the special master was appointed. Judge Cannon ordered both sides – the government and Trump – to nominate two candidates each for the position. Either side could object to the other side’s nominees, and Trump’s attorneys promptly vetoed both names the government put forward. Of Trump’s nominees, the government vetoed one – a man whose wife sits on the Eleventh Circuit Court of Appeals, which would hear any of the special master’s rulings – but agreed to the other one, Judge Raymond Dearie. So Dearie got the jub – and proceeded to make mincemeat of the Trump side’s claims.

Trump himself had been giving interviews to favorable news outlets like Fox and Newsmax (a hard-Right Web site for people who think Fox is too liberal for them) in which he made sweeping claims that the FBI had planted classified documents and other papers, and that he had personally declassified all the records during his term as President. Judge Dearie told the Trump side, essentially, to put up or shut up. Judge Dearie ashed Trump’s lawyers for a list of the documents they’re alleging the FBI planted, and a list of the ones he supposedly declassified. So far Trump’s attorneys have not come up with any of the lists Judge Dearie asked for.

Obviously Trump’s strategy is to delay and stall the proceedings as longas possible. People who have followed Trump’s career from his emergence as a New York real-estate developer to successful Presidential candidate have noted that delay is his principal legal tactic. Trump is waiting and hoping that Republicans will win back control of both houses of Congress in this November’s midterm elections, and a Republican President – either Trump himself oir one of his clones, like Florida Governor Ron DeSantis or Texas Governor Greg Abbott – will win the Presidency in 2924 and appoint an Attorney General who will cancel all the ongoing investigations of Trump and allow him once again to go scot-free from any consequences.

A Sore Loser and an Even Sorer Winner

The September 5 PBS Frontline episode, “Lies, Politics and Democracy,” aired on the same day Judge Cannon gave her Trump-fawning opinion, It began with a montage of film clips of defeated U.S. Presidential candidates conceding the elections and offering congratulations to the winners. From Wendell Willkie in 1940 to Hillary Clinton in 2016, the pattern held. Even candidates who lost close elections based on disputed results from one state, and could therefore have claimed with some legitimacy that the election had been stolen from them – like Richard Nixon in 1960 or Al Gore in 2000 – publicly acknowledged that they had lost.

Not Donald Trump. As New York Times reporter Peter Baker, who covered Trump’s Presidency and has since written a book about it, The Divider, told Frontline, “He has done this every step of the way through his career, long before politics. When The Apprentice lost an Emmy to The Amazing Race, he claimed that the Emmy contest was rigged. … Every step along the way, anything he has ever lost is because somebody else has cheated and stolen it from him.”

The importance of The Apprentice, the “reality” TV show that cast Trump as the smartest and most successful capitalist of all time – a perception wildly at variance with his actual record as a businessperson – cannot be overstated. It sold millions of Americans – including people who never actually watched it – on the idea that Trump was such a brilliant manager people would literally flock to him and allow him to humiliate them publicly in hopes of learning his secrets to success.

So when The Apprentice repeatedly lost the Emmy for Best Reality TV Series to The Amazing Race – a show that celebrated athleticism over business savvy – it was more than Trump’s fragile ego could handle. He went on his then-favorite social media platform, Twitter, to grouse about the outcome and say the process was rigged: “Amazing Race winning an Emmy again is a total joke. The Emmys have no credibility. The Emmys are all politics, that’s why The Apprentice never won.” In another venue, Trump said, “The public is smart. They know it’s a con game.”

When Barack Obama, a man Trump both publicly and privately hated, successfully won re-election against Mitt Romney in 2012, Romney himself conceded – but Trump didn’t. In statements chillingly similar to the way he would react to his own electoral defeat in 2020, Trump tweeted, “This election is a total sham and a travesty. We are not a democracy. More reports of voting machines switching Romney votes to Obama. Let’s fight like hell and stop this great and disgusting injustice! We can't let this happen. We should march on Washington.”

During one of the debates between Trump and Hillary Clinton in 2016, Trump was asked point-blank if he would accept the results of the election – and he said, “If I win.” As Daniel Ziblatt, author of a book called Hoe Democracies Die, told Frontline, Trump’s comments about the 2012 and 2016 elections “set off alarm bells. To be a small-’D’ democrat means to know how to lose elections, and a democracy can’t survive if politicians and political parties don’t know how to lose. Sometimes people have even said democracy is for losers; it’s a system that allows losers to come back and fight another day. And so if the losers deny that they’ve lost, the system can’t endure.”

What’s more, Trump’s refusal to accept defeat has become a role model for other Republican candidates. Many of the major Republican nominees for governor, U.S. senator and other major offices have already announced that if they don’t win, they will declare that the election was stolen. Doug Mastriano and Judy Hice, Republican gubernatorial candidates in Pennsylvania and Arizona, respectively, have all but promised that they will refuse to certify the 2024 election results if a Democrat wins their state’s vote for President.

Not Just Trump: Republicans Reject Democracy

The Frontline show “Lies, Politics and Democracy” featured many interviews with traditional Right-wingers who feared Trump’s authoritarian tendencies when he first ran for President in 2016 and even earlier. Among them were Bill Kristol, founder of the Right-wing magazine The Weekly Standard, who said, “He had a real feel for people’s anxieties and unhappiness about various things. He was willing to stoke those anxieties and hatreds, in some cases, resentments, in ways that other politicians weren’t willing to. … I was publicly saying that Trump was unacceptable, people shouldn’t support him. They should make clear they couldn’t support him in the general election even. They should band together against him.”

Another Right-winger, columnist Mona Charen, told Frontline, “There were many, many signals throughout 2016 that this was not just a showman, but no, somebody who had definite authoritarian sympathies. And there was violence at his rallies that he openly encouraged. I mean, it wasn't a joke.”

The Frontline documentary featured clips from Trump himself at his 2016 campaign rallies, mocking people with disabilities and urging his supporters to beat up hecklers in the audience. “Knock the crap out of him, would you?” Trump told the crowd at one such rally. “Just knock the hell.” adding that if anyone in his crowd were arrested for assaulting a heckler, “I promise you I will pay for the legal fees. I promise.” At another rally on February 22, 2016, he said, “I love the old days. You know what they used to do to guys like that when they were in a place like this? They’d be carried out on a stretcher, folks. I’d like to punch him in the face, I’ll tell you. Ah, it’s true.”

“The nastier he got, the more excited the crowd got,” Danien Ziblatt told Frontline. “And rather than trying to clamp that down and sort of pull back, he egged on the crowd further. And that dynamic of the angry crowd and the demagogic leader fomenting anger and using violent rhetoric was a sign that this is somebody who had no democratic core, liberal democratic core. And it was not clear what the limits of this style of politics were. So I think that was very frightening.”

Once again, it’s not just Donald Trump but most of the Republican Party which has rejected the basic tenet of democracy – the idea that the people, or a majority of them, should be able to decide who will lead them and what the people they elect should do. In a July 2022 speech before the American Legislative Exchange Council (ALEC), a Right-wing policy group that writes model bills and gets state legislators to pass them – former Senator Rick Santorum (R-Pennsylvania) openly called for a second constitutional convention to rewrite the U.S. Constitution to enshrine the policy priorities of the American Right.

Citing Article V of the existing Constitution, which provides that the votes in a new Constitutional convention shall be one state, one vote – not one delegate, one vote – Samtorum boasted that because the convention would be dominated by the voters of smaller, more Right-wing states, "we have the opportunity … to have a supermajority, even though …we may not even be in an absolute majority when it comes to the people who we agree with." (The speech was reported by Business Insider at https://www.businessinsider.com/constitutional-convention-conservatives-republicans-constitution-supreme-court-2022-7.)

One of the keys to the Republican Party’s outsized dominance of America’s current political system is their shrewd use of the anti-democratic features of the original Constitution. The framers guaranteed each state, no matter its size, two U.S. Senators – which may have seemed like a livable compromise in 1787, when the largest state, Virginia, had nine times the population of the smallest, Rhode Island. Today the largest state, California, has 80 times the population of the smallest, Wyoming.

Under the original Constitution, actual voters would elect no higher office than their member of the House of Representatives. The Senate was chosen by state legislatures, and the President by an Electoral College made up of the total number of House and Senate members – which once again extended the outsized power of small states in the overall design of the U.S. government. Later developments, including the U.S. Supreme Court’s assertion of the right to nullify legislation as unconstitutional ini 1803, and the evolution of the Senate filibuster from 1837 to 1975, added arrows to the modern-day Republican Party’s anti-democratic quiver.

Today we have a six-member radical-Right majority on the Supreme Court which – contrary to the usual designation of them as “conservative” – is on an ideological tear, upending a 50-year-old precedent that guaranteed women autonomy over their own buddies and a 100-year-old law in New York that banned the carrying of concealed weapons. And in its upcoming term, the Supreme Court will take up a case brought by North Carolina Republicans who assert that state legislatures have “plenary power” (a phrase we heard a lot in Trump’s unsuccessful attempt to reverse the outcome of the 2020 election) to do whatever they like in setting up their districts, and neither the courts nor anyone else can check them.

Meanwhile, the Republicans have essentially given up on the idea of winning the Presidency through the popular vote. Republicans have won three Presidential elections since 1992, but only once did their candidate, George W. Bush in his re-election in 2004, win a plurality of the actual vote. In the other two cases – Bush in 2000 and Trump in 2016 – the Democrats won the popular vote but the Republicans won the Electoral College, and with it the presidency.

If the 2024 election turns out the way 2020 did – a Democrat wins the Electoral College by carrying states with Republican legislators and/or governors – and the Supreme Court endorses the “plenary power” of state legislatures, they could do what the Trump team unsuccessfully tried to get them to do in 2020: refuse to accept electors pledged to Biden or anyone else who might be the Democratic nominee, and seat electors pledged to Trump or whoever is running as the Republican candidate.

A Worldwide Tidal Wave of Authoritarianism

And it’s not just the United States of America. In country after country throughout the nominally democratic world, autocrats are coming to power with many of the same principles, strategies and tactics as Trump. Strongmen like Vladimir Putin in Russia, Narendra Modi in India, Viktor Orbán in Hungary, Andrzej Sebastian Duda in Poland, Recep Tayyip Erdogan in Turkey, Jair Bolsonaro in Brazil and Rodrigo Duterte in the Philippines have won power based on Trumpian hyper-nationalistic appeals to “make [their countries] great again.” The recipe includes attacks on immigrants, racial and religious minorities, and anyone perceived as a threat to “traditional family values.”

And once these people take power, they have no intention of ever relinquishing it again. They systematically go after all other institutions in society that might put a brake on their power, including the courts, the media and ordinary citizens. They also use their power, as Republicans are doing throughout the U.S. states they control, to rewrite the elections laws to make it more difficult for people who would vote against them to be able to vote at all. And their bases of support are consistently among working-class people and others with less education – precisely the sorts of voters who in many of these countries (including the U.S) used to be bulwarks of the Left until they were swayed to the Right by appeals to traditional cultural values.

The latest example of a former democracy which has turned to the dark side and become a neo-fascist country is Italy, where the original Fascist movement started exactly 100 years ago next month. In October 1922 Benito Mussolini staged his famous “March on Rome,” in which he organized 30,000 armed militiamen to advance on the nation’s capital and demand – and get – absolute power. Mussolini stayed in office for 23 years until his nation ended up on the wrong side of World War II and he was captured and hanged by anti-fascist Italian partisans in 1945.

But Mussolini’s last chief of staff, Giorgio Almirante, was not idle. In 1946 he formed a new political party, the Italian Social Movement (MSI), with the stated goal of keeping Mussolini’s political legacy alive. Barred by the postwar Italian election law from calling his party fascist or using the ancient Roman symbol of authority, the Fasces (a bundle of twigs with axes embedded in them; the Romans had used this as a symbol of power and Mussolini not only copied it but derived the term “Fascism” from its name), Almirante devised a flame-like symbol based on the colors of the Italian flag – red, white and green – that the party, now called Fratelli d’Italia (“Brothers of Italy”) since it was reorganized in 2012, has used ever since.

On Sunday, September 25, Fratelli d’Italia and its current leader, Giorgia Meloni, won 26 percent of the vote in Italy’s national elections. Together with two other Right-wing parties in their coalition, Meloni’s neo-fascist forces will control 42 percent of Italy’s next legislature and therefore, under Italy’s constitution, will run its government. Meloni expressed her views on cultural issues during her campaign in a speech to another far-Right party, Vox. In words that might have come from a Trump Republican in the U.S., she said, “Yes to the natural family, no to the LGBT lobby, yes to sexual identity, no to gender ideology ... no to Islamist violence, yes to secure borders, no to mass migration ... no to big international finance ... no to the bureaucrats of Brussels!"

Donald Trump was probably overjoyed at the outcome of the Italian election. Not only did a candidate following his recipe for success win control of a major country, it probably held personal resonance for him. One of the members of Meloni's coalition was the party led by former Italian prime minister Silvio Berlusconi. Though Berlusconi, an Italian media tycoon with no previous political experience, was driven out of office in disgrace after he was convicted of tax fraud and sex with underage girls, he is now returning to political influence as a junior member of Meloni’s governing coalition.

That sends a powerful message to Donald Trump. As someone who has managed through gutter tactics, street smarts and total ruthlessness to survive and prosper from blows that would have destroyed lesser mortals, Trump no doubt envies Berlusconi’s comeback and sees it as a role model for himself. It sends Trump the message that even if, God forbid, he’s not only indicted but actually convicted of any of the crimes he’s currently being investigated for, he could still have a shot at a political comeback.

And make no mistake about it: Trump’s re-election as President, especially if accompanied by a Republican Congress, will mean the end of America’s experiment in republican self-governance. It will lead to massive witchhunts against women, people of color and especially Queers. It will also hasten the extinction of the human race because it will mean an end to any meaningful attempt to stop or slow down the devastating, apocalyptic effects of human-caused climate change. Under a second Trump administration, the Department of Justice will become an instrument to reward Trump’s friends and especially to punish his enemies.

Donald Trump already bestrides the world like the proverbial Colossus. Even though he’s no longer President, he still dominates the news cycle day after day, while Joe Biden struggles to get a word in edgewise. It seems to take a super-major news story, like the death of Queen Elizabeth II after 70 years of rule (the longest-serving monarch in British history) or the landfall of Hurricane Ian on the Florida coast, to knock him off the main news slot. Like it or not, we all live in Donald Trump’s America, and he just lets us live in it – or not.