Jonathan P. Baird

Recently my old friend Rusty sent me a video clip from a speech President John F. Kennedy gave 60 years ago. Given at the commencement ceremony at American University on June 10, 1963, the speech became famously known as Kennedy’s peace speech. The speech is not like any that you would hear now from an American president, whether they were a Democrat or a Republican.

Kennedy made an impassioned plea for moving away from nuclear weapons and for reducing the threat of nuclear war. It was a speech opposed to militarized mindsets and it called for Americans to reassess our attitudes. Kennedy argued the commonalities between the U.S. and Russia and he emphasized how nuclear war has no winners.

I could not help but think about President Kennedy’s peace speech when I heard that Daniel Ellsberg had died. While Ellsberg is mostly remembered for his whistleblower role in publishing the Pentagon Papers, he also had an earlier career as a nuclear war planner. With a top security clearance, he wrote guidelines for nuclear war for Defense Secretary Robert McNamara during the Kennedy administration.

He came to have grave misgivings about both our nuclear strategy as well as America’s excessive and bi-partisan militarism. He saw this playing out from the Vietnam era to our time. Both Democrats and Republicans have accepted absolutely massive military budgets with little pushback. Later in his life, Ellsberg offered up powerful warnings but his warnings have not been heeded.

Ellsberg first began to have doubts in his years of working on nuclear war planning. Upon inquiry, the Joint Chiefs of Staff estimated in 1961 that in a nuclear first strike by the United States, 600 million would die. That would include 365 million in Russia and China, 100 million in the East Bloc satellite countries and another 100 million in Western Europe. The American war plan called for attacking every major city in Russia and China with a population over 25,000.

Those numbers floored Ellsberg and shook his faith in the rationality of nuclear war planning. Because of the human toll, he came to see nuclear war planning as “the most evil planning that has ever existed in the history of humanity”. Although he had been a Cold War hawk and a national security expert, he turned against nuclear proliferation and also against conventional thinking about military strategy and spending.

He stopped believing in the likelihood of any winner in a nuclear war. Even in a U.S. first strike on Russia, if the U.S. knocked out all Russian Inter-continental Ballistic Missiles (ICBMs), there would be no sure way to stop all the Russian submarine missiles and bombers. Both sides would be looking at mutually assured destruction. Nuclear winter would doom America just as it would doom Russia.

In his book, The Doomsday Machine, he wrote that the Joint Chiefs’ estimate of fatalities was a “fantastic underestimate”. The war planners deliberately omitted entirely from their estimates the destructive effect of fire. Firestorms caused by thermonuclear weapons were known to be predictably the largest producers of fatalities in a nuclear war. Also, smoke, leading to nuclear winter, was not yet recognized. In the 1960’s there was not yet recognition of nuclear winter and the environmental effects of nuclear war.

Ellsberg knew that the death count from a full scale nuclear exchange would be much higher than 600 million. In an interview he gave to Fresh Air on NPR in 2017 he said:

“Scientific research had concluded that nuclear war would loft into the stratosphere many millions of tons of soot and black smoke from the burning cities. It wouldn’t be rained out in the stratosphere. It would go around the globe very quickly and reduce sunlight by as much as 70 percent, causing temperatures like that of the Little Ice Age, killing harvests worldwide and starving to death nearly everyone on earth. It probably wouldn’t cause extinction. We’re so adaptable. Maybe 1 percent of our current population of 7.4 billion could survive, but 98 or 99 percent would not.”

One practical step Ellsberg advocated was the elimination of ICBMs. Rather than spending $100 billion for a replacement of the Minuteman 3 missile, he argued land-based missiles like ICBMs are outdated and especially dangerous. Once launched they cannot be called back. In a crisis, the decision to launch can jam up a President who has maybe a 10 minute window to decide how to respond to a possible nuclear attack. The same timeframe does not exist for nuclear subs or planes, They can be called back.

Our technology is not that perfect. False alarms can lead to nuclear scrambling. On one occasion a flock of Canadian geese activated the Distant Early Warning Line. The birds were interpreted as a Soviet bomber attack. ICBMs leave too little room for any kind of reasoned launch or not launch decision.

Ellsberg says ICBMs should have been eliminated 50 years ago but companies like Northrup Grumman (that have the government ICBM contract) see huge profits in the production of the Sentinel, the Minuteman 3 replacement. The military-industrial complex thrives on an endless supply of new weapons systems.

At the end of The Doomsday Machine, along with eliminating ICBMs, Elsberg lists some other proposals:

• A U.S. no-first use policy
• A probing investigative hearing on our war plan in the light of nuclear winter
• Forgoing delusions of pre-emptive damage-limiting by our first-strike forces
• Giving up the profits, jobs and alliance hegemony based on maintaining that pretense
• Otherwise dismantling the American Doomsday Machine

Ellsberg says both political parties oppose every one of these measures. Officials and elites in both parties “consciously support militarism, American hegemony, and arms production and sales”. There is a too casual and cavalier attitude about war. Fantasies of victory override any consideration of human tolls.

Right until the end of his life, Ellsberg critiqued the hawkishness that pushes for total victory whether it is in Ukraine or with China. Diplomacy is sidelined in favor of dreams of conquest. This is a very old and tragic human story. The anti-nuclear activist Helen Caldicott once wrote a book titled Sleepwalking to Armegeddon. That title remains an apt description of our present reality.

Back in the years prior to 2015, there used to be two major political parties in America committed to democracy. The parties disagreed vehemently about policy and the Republicans relied on voter suppression and gerrymandering but both parties accepted election results and the verdict of the voters. They could both generally accept electoral defeat and move on.

The Republican Party has, however, evolved into what the historian Ruth Ben-Ghiat would call “an autocratic party operating inside a democracy, and it is a party in thrall to a cult leader”. The old Republican Party used to be a conservative party defined by a set of principles. I was never a fan but they had a party platform with an agenda. Now, instead of any principles, the Republican party is defined by loyalty to a person – Donald Trump. He remains their leading presidential candidate for 2024.

Cults of personality are typically constructed around extreme devotion to a charismatic leader. Followers accept the leader based on a notion that together they will bring about an imagined future (“Make America Great Again”). As someone schooled in TV, Trump focuses on the manipulation of repeated images about himself. He wants to control the narrative so he can show himself as strong, in control, and adored by his followers.

He builds the personality cult to keep people loyal to him and to prolong his power. Also staying in power or running for office serves his goal of avoiding prosecution or possible jail time. It is his get-out-of-jail-free card.

Recent developments, the two criminal prosecutions and the E. Jean Carroll case, have complicated Trump’s narrative. He sells his victimhood to gain support and to encourage his followers to feel protective of him. He presents himself as an innocent and honest man who has suffered and been unfairly victimized by a Deep State conspiracy.

He seeks to discredit and destroy public trust in any sector of the government (FBI or Department of Justice) that investigates him or any press that engages in honest inquiry about his corruption including his bizarre illegal eccentricities like keeping and hiding classified documents after his presidency ended.

Largely though, the American mass media still wants to see the same horse race that has defined American politics in the past. They want to normalize and pretend that nothing significant has changed but in this, they could not be more wrong. The Republicans are anything but conventional politicians.

If you actually listen to the words of former President Trump he is now talking about “the final battle”. After losing a free and fair election, he launched the January 6 coup. He did not and has not accepted the election outcome decided by the voters. He created the Big Lie of a stolen election. As noted, he has clung to that Big Lie to this day and has doggedly tried, with much success, to get other Republicans to make that Big Lie a defining principle for the party.

Propaganda works through repetition. To quote Ruth Ben-Ghiat:

“Propaganda is never just words and it goes beyond lying. It is a system of organizing belief so people come to see the world in ways that benefit the leader and the party.”

In his most recent campaign appearances, Trump has returned to the theme of purging the government civil service and replacing federal government employees with his loyalists and cronies. Instead of talking about jailing Hillary, he talks about jailing “the Biden crime family”. He wants to punish those who opposed his attempt to overthrow the government and he talks about pardoning convicted January 6 insurrectionists.

Vengeance on his enemies remains a major preoccupation. He has consistently told his supporters that violence is a good way to solve conflicts. At a March 2016 campaign event, he said, “Part of the problem is…nobody wants to hurt each other anymore” when he felt security treated protesters too gingerly. Many times at his rallies he told audiences that he would pay legal fees if they beat up a protester. At his March 2023 CPAC speech this year, he said,

“In 2016 I declared, I am your voice. Today, I add, I am your warrior. I am your justice and for those who have been wronged and betrayed, I am your retribution.”

This “I am your retribution” stuff has a distinctly fascist resonance. He wants to create a corps of believers like he had on January 6 who would be willing to attack his political enemies at his command. It is reminiscent of the Italian fascist dictator Benito Mussolini, saying:

“What did Italy need? An avenger! …It was necessary to cauterize the virulent wounds …and eliminate evils which threaten to become chronic.”

Accepting Trump’s narrative ties his followers to him and makes them partners in the fascist project. They share the thrill of an amoral adventure with a leader who has defied all political conventions and normal restrictions.

All who care about democracy must not overlook what has happened to the Republican Party. For many millions of people worried about losing status and their foothold, Trump’s message has appeal. His being a con man, a grifter, and a charlatan gets shunted aside because he has an ability to connect with masses of people.

The writer Alissa Quart has made some good points about Trump’s appeal in her book, Bootstrapped. She argues the importance of origin story and she says many voters have been heavily and falsely influenced by a story that presents Trump as a self-made man. It is very American to love Horatio Alger-type stories.

Quart says Trump doctored his own story. Trump makes it sound like he took out a small loan and turned it into a massive real estate empire. The truth is quite different. Trump was born into great wealth. He was the son of a real estate mogul and he received many millions from his father to start and later to keep his businesses afloat. Trump is anything but self-made.

Trump’s project is about destroying democracy. The cult of personality is in furtherance of that aim. You can count on him to say that any election he loses was rigged. Ruth Ben-Ghiat has said that if he gets back into power, he will never leave. I think that is a safe bet.

Any time the U.S. Supreme Court issues a decision now, I admit I shudder. Very occasionally they can surprise like they did in the Alabama voting rights case, Allen v Milligan, this last week but typically decisions are predictable, especially when the Court is dealing with cases where they have a track record of hostility toward a certain group. Organized labor is such a group.

The Court always sides with employers against organized labor. In the case they just decided, Glacier Northwest v International Brotherhood of Teamsters Local Union 174, they did it again. The Court held that Glacier Northwest, a concrete company, could sue the Teamsters in state court for its loss of perishable concrete stemming from the workers’ strike.

In the Glacier situation, back in 2017, 85 truck drivers walked off the job and went on strike. At the time of the strike, 16 of the drivers had trucks filled with concrete that had not yet been delivered. The workers drove their trucks back to the company headquarters. They left the trucks running with their drums rotating so the cement would not harden and be ruined.

Glacier’s non-union workers did remove the wet concrete from the trucks before there was any significant damage to the trucks but the company lacked the personnel to deliver the concrete to customers. As a result, some of the wet concrete hardened and spoiled. The lawsuit Glacier filed in state court related to the spoiled concrete. They argued intentional destruction of company property by the union.

In an 8-1 decision authored by Justice Amy Coney Barrett, the Court found that the workers’ decision to strike after the concrete had been mixed and poured into the trucks meant they failed to take “reasonable precautions” to avoid foreseeable, aggravated and imminent harm to Glacier’s property.

Barrett went on to conclude that the strike was not “arguably protected” under the National Labor Relations Act. She ruled that the company may pursue a lawsuit against the union in Washington state court before the National Labor Relations Board (also called the NLRB) decides whether this strike was protected by federal law.

The ruling is a significant loss for organized labor because it weakens the NLRB and because it makes it easier to sue unions for striking. The Glacier case opens the door to more cases being tried in state court rather than the NLRB, a result labor absolutely did not want.

I would acknowledge though that the ruling is narrower than it might have been. Many unions had worried the Court would much more drastically erode the right to strike. As labor organizer, Jane McAlevey has pointed out:

“What the Court did today, in essence, was simply say workers can’t call surprise strikes that cause property damage.”

Based on their opinions, it would appear that the hard right bloc of the Court, Justices Thomas, Alito and Gorsuch, would like to replace long-established federal jurisdiction of strikes with state-level tort law. Stripping power away from the NLRB is part of their deconstructing the administrative state project. They are out to sideline the NLRB which for almost 100 years has been the federal agency charged with protecting workers’ rights to collective action and their right to strike.

Glacier may just be a speed bump in the anti-labor project. The hard right justices no doubt hope to realize their vision in a future case.

To appreciate what was at stake in the case for labor, earlier American labor history is relevant. Before the NLRB was created during the New Deal, many conservative judges saw unions as criminal conspiracies set up to undermine business. Courts generally acted as agents of capital. The hard right bloc appears to want a return to Robber Baron and Gilded Age days before the New Deal.

The sole dissenter in the Glacier case was Justice Ketanji Brown Jackson. In a fiery dissent, she came out, arguing:

“The right to strike is fundamental in American labor law… Today the Court falters…And in the course of inappropriately weighing in on the merits of…at this stage, this majority also misapplies the [National Labor] Board’s cases in a manner that threatens to impede the Board’s uniform development of labor law and erode the right to strike.”

Justice Jackson bought no part of the majority opinion. She thought the case should have been handled by the NLRB and that state courts were required to take a “jurisdictional hiatus’. She noted that workers have “a statutory right to strike despite the fact that exercising that right risks economic harm to employers”.

Striking is about putting maximum pressure on employers and unions often time strikes to inflict the biggest cost to employers. From the labor side, that is a fact of life needed to increase the chances of winning. Justice Jackson defends the right to strike even when it causes economic harm because, she says, it can advance Congress’s goal of achieving “equality of bargaining power between employers and employees’. She saw the Teamsters’ actions as protected under law. In closing, she powerfully wrote:

“Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results.”

If there is any bright side to the Glacier case, it is seeing Justice Jackson’s bold and independent-minded opinion. She follows in the progressive jurist tradition of William Brennan, Thurgood Marshall and Ruth Bader Ginsburg. This is her first major dissent. There are likely to be many more.

June is the end of the term for the U.S. Supreme Court and it is when the big decisions usually issue. As I write on June 4, we already had one major environmental decision in Hackett v Environmental Protection Agency (EPA). In that case, the Supreme Court interpreted the 1972 Clean Water Act in a way that failed to protect the nation’s waterways. At least 50% of the nation’s wetlands could lose protection.

The EPA is now precluded from regulating discharges of pollution into wetlands unless the wetlands have “a continuous surface connection” to bodies of water that are described as streams, oceans, rivers and lakes. Prior to the Sackett decision, the Clean Water Act had protected wetlands that were “adjacent” to larger bodies of water. Very arguably, “adjacent” doesn’t require a continuous surface connection. The decision could open 120 million acres of U.S. wetlands to development.

The decision puts private profit over any public good. Birds will lose nesting areas, fish will suffocate, and many animals that thrive in wetlands will lose habitat. In our era of climate change, wetlands also play a buffer role with giant storms. They help to protect against sea level rise. They also help to filter and purify water that drains into aquatic bodies.

The Hackett decision follows on the heels of last summer’s decision in West Virginia v EPA. In that case, the Supreme Court limited the EPA’s power under the 1970 Clean Air Act to regulate carbon emissions from power plants.

Power plants are the second-largest source of greenhouse gases in the nation and the United States is the world’s largest emitter of cumulative greenhouse gas emissions. You do not have to be Greta Thunberg to know we need to be doing everything we can to tackle the climate emergency.

The Supreme Court majority appears clueless about climate change. In their rarified atmosphere, climate change is apparently not happening or it is still denied. Stepping back, the Court’s majority remains focused on shrinking the power of federal agencies like EPA. This has been the Federalist Society vision, also known as deconstructing the administrative state. So at a time of accelerating climate change, the Supreme Court weakens the government agency with the most responsibility for addressing the problem.

I would suggest that the real motivation of the Supreme Court is to undermine government regulation of business. They are acting in a thoroughly political fashion to satisfy their extreme right wing political and financial backers, including from the fossil fuel industry.

Congress has laid out a broad policy of environmental protection and it delegated to the EPA the task of implementing policy through a series of binding regulations. EPA has the repository of expertise. It has policy experts with years of experience in technical areas they regulate. As Ian Millhiser has written:

“Delegating power to agencies insures that decisions are made by people who know what they are doing.”

But the Court majority has not been happy with deference to administrative agencies like EPA. The general rule has been deference to an agency’s interpretation of federal law when Congress was general or vague about the scope of an agency’s power. That way courts generally upheld agency regulations. This was based on a recognition of agency expertise. In her dissent in West Virginia v EPA. Justice Elena Kagan wrote:

“The Court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of anything more frightening.”

Now that they have their six votes, the Roberts majority is invariably outcome-based rather than reasoned in accordance with long-standing judicial principles.They usurp power for themselves rather than ceding power to administrative agencies. I am old enough to remember when conservatives called the Warren Court “activist”. Judicial restraint is a concept that no longer applies to the Supreme Court.

Even leaving aside the rampant ethical issues that the Supreme Court is also failing to address, the deeper issue is a Court that has been captured by Dark Money interests like Mr. Crow and Mr. Koch. They haven’t hesitated to reverse precedent and remake America in a backwards vision selfishly favoring the super-rich.

For all who care about the rule of law, this is nothing short of catastrophic. A new paper written by four law professors concluded that Democrats were unlikely to regain majority control of the U.S. Supreme Court until 2065, unless they expand the number of justices on the High Court. It is hard not to think that 40 more years of this Court majority would turn America into an unrecognizable place.

In thinking about options, the option of expanding the Court from 9 to 13 justices deserves very serious consideration. There’s no constitutional prohibition and it is entirely within the province of Congress to do it. Adding four justices is a fair response to the conservative court-packing we have witnessed since the last year of the Obama presidency.

The number of justices on the Supreme Court changed six times before settling on nine in 1869. It is 154 years since that event. Maybe it is time for a change.