Jonathan P. Baird

More than any single case, the biggest story about the Supreme Court has been the exposure of its blatant corruption and the failure of Chief Justice John Roberts to respond in any meaningful way. The ProPublica stories about both Justice Thomas and Justice Alito are damning.

Justices paling around with billionaires, taking lavish gifts and vacations and not reporting them and then deciding cases in favor of the 1% is not a great look. It is no different than politicians getting big bucks from their corporate donors and then crafting policy that delivers and serves the interests of the super-rich. Both are the victory of dark money.

Roberts’ failure to act stands in stark contrast to the behavior of earlier Chief Justice Earl Warren. Over fifty years ago, when Justice Abe Fortas acted in a way much less ethically compromised than Justice Thomas now, Warren engineered Fortas’s removal from the Court even though losing Fortas was a deadly blow to the then-liberal majority. 1969 was actually the last time the Court had a liberal majority.

With supreme arrogance, Roberts has looked the other way and pretended no one will notice the stench. Even the minimal step of a binding ethics code is too much. Justice Alito has made it clear that he thinks the Court is utterly beyond accountability.

Keeping the 6-3 conservative supermajority intact transcends ethics. This Court is just at the beginning of the conservative counter-revolution. After Dobbs and the taking away of women’s reproductive freedom, who knows where their trajectory will lead. Will they take away the right to contraception? gay marriage ? Will they expand gun rights? eliminate separation of church and state? further weaken unions? increase discrimination against LGBTQ people? Stay tuned.

The corruption mess aside, the Court issued some other major decisions this last term that demand response. You could take your pick which case is most disturbing but I would pick the student loan case, Biden v Nebraska. At the same time some billionaires pay to get rules and laws rigged in their favor, the Court decided in a way that took away debt relief from 43 million people.

No one can accuse this Court of being the peoples’ Court. It is the billionaires’ play thing. Tracking how private groups use anonymous donations to advance their interests at the Supreme Court could be a full-time detective job.

President Biden’s student loan relief plan would have forgiven up to $20,000 in debt to millions of student loan borrowers.The plan cancelled $430 billion in debt and it would have totally erased debt for 20 million borrowers. The median burden on all outstanding debt would have been dramatically lessened, especially helping those from low and middle-income families. Any way you cut it, the plan was significant.

The Biden plan was premised on the Higher Education Relief Opportunities for Students (or Heroes) Act of 2003. The law gave the Secretary of Education broad and sweeping power to modify or waive any provision of the student loan law in the context of a national emergency (which COVID most certainly was).

The Trump Administration had previously paused student loans, including the accrual of interest, during the COVID emergency. No one kicked when Trump invoked the Heroes Act but the Court now says Congress exceeded its authority when Biden followed up.

Writing on behalf of the Court’s conservative majority, Roberts offered a tortured reading of the statute to explain why “modify” and “waive” don’t have their plain meaning. It is hard not to see this as anything but black-robed partisan Republicans denying a Democratic president a political victory.

The case is an overreach with the Court majority acting like it is Congress, a policy-making body. To quote from the dissent by Justice Elena Kagan:

“From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”

One of the strangest aspects of the case was that none of the states that sued the Biden Administration had any personal stake in the Secretary of Education’s loan forgiveness program. It is elementary constitutional law but to have standing, you must have been injured. Without that, there is “no case or controversy”.

The Supreme Court got around the standing problem in the most tenuous way imaginable. It found MOHELA, a separate loan servicing public corporation based in Missouri provided standing even though MOHELA did not bring any case. Nor did it file an amicus. It was not clear MOHELA suffered any injury or wanted anything to do with the case but the Court wanted to get to the merits.

This was very much like the 303 Creative LLC v Elenis case where no gay person asked the plaintiff to design a gay wedding website and the Court ruled on a hypothetical. It used to be that the Court required a case with an injury but no more. If the Court doesn’t like a policy, it flexes its muscles and makes a case up.

At oral argument, Justice Alito expressed his view that student debt relief was not fair. Like a spiteful old person, Alito showed his out-of-touchness. Since 1980, the total cost of both four-year public and four-year private college has nearly tripled even after accounting for inflation. Many students have had no choice but to borrow more if they want to get a degree.

The debt burden is like an extra mortgage and very different than when someone like Alito was in college and debt was much more affordable. It is entirely appropriate for the government to be coming up with plans like what the Court rejected. The Biden Administration must counter with an effective Plan B for student loan relief.

For far too long, liberals and progressives have ignored the conservative court juggernaut and the consequences are now too obvious. Court reform must move way up on any liberal/left to-do list.

The conservative majority overreach is not likely to stop any time soon.

Instead of supporting a ceasefire and peace talks, the Biden Administration continues to pursue an extremely hawkish approach to the war in Ukraine. This is exemplified in one particularly disturbing decision which President Biden acknowledged was a “very difficult” call. That is, the decision to supply Ukraine with cluster munitions.

Cluster munitions are bombs, rockets and artillery shells that contain submunitions, that when deployed, can leave behind unexploded ordnance. The unexploded ordnance can be buried in land, hidden from view or lay in plain sight.

Children are the most common victims. The submunitions can be mistaken for toys. As an attractive nuisance, they resemble a bell with a loop of ribbon at the end.

Very little pressure or movement can explode a submunition instantly. A mistaken move can lead to a triggering which can literally shred a human being. Like a flying landmine, they blow off arms and legs and inflict fatal wounds. Cluster munitions can remain lethal to civilians for generations. After a war, when civilians return to a previous war zone, the bomblets are still there, lurking in subterranean fashion.

Cluster munitions are some of the nastiest, most savage weapons of modern warfare. The U.S. has already shipped these bombs to Ukraine and they are currently in use. Russia also has been widely using cluster munitions in Ukraine since its full scale invasion in February 2022. Even before the new U.S, shipment, Human Rights Watch documented the use of cluster munitions by Ukraine between March-September 2022.

There is a 2008 U.N. Convention on Cluster Munitions which bans the use, sale or stockpiling of these weapons. The Convention has 111 state parties – countries that have agreed to be legally bound by its provisions. Twelve more states have signed but have not completed ratification. Among other states, France, Germany, the Netherlands, the United Kingdom and 20 other NATO member states have all signed on. The United States, Russia and Ukraine are all holdouts. None have signed the Convention.

A big part of the reason these weapons have been banned is because more than half of those killed or injured by them are civilians. Their track record is a history of indiscriminate devastation. While new military technology is often touted by its partisans for its alleged accuracy, these bombs are the opposite. They are like a deadly mechanized spray over an area the size of a football field.

Then there is the matter that many submunitions fail to explode on initial impact, leaving dangerous duds that can kill or maim for years to come unless the multiple bomblets are cleared and destroyed.

While the U.S. government has said the cluster munitions it is giving Ukraine fail less than 3% of the time, past use of the particular munitions the U.S. is providing suggest far greater failure rates. A 2022 report from the Congressional Research Service found that real-world cleanup operations “have frequently reported failure rates of 10% to 30%”.

Dud rates can be affected by the surfaces where submunitions land as they need hard surfaces. It is entirely possible that you could have a higher dud rate if the submunitions are dropped in mud.

In a different context, the U.N. estimated that 40% of Israeli cluster bombs failed to explode on impact when Israel was fighting Hezbollah in Lebanon in 2006. Large scale use resulted in a region infested with tens of thousands of unexploded submunitions.

Cluster munitions have now contaminated 24 countries including Laos, Vietnam and Cambodia. NPR recently reported on the horrendous effects of cluster bombs on Laos. While an estimated 50,000 Laotian civilians were killed by cluster bombs during the Indochina War, about 20,000 civilians have been killed by cluster munitions since the war ended. It is estimated the Laotian dud rate was 30%.

Fifty years later, Laos has not reached the end of this nightmare. An estimated 80 million unexploded bombs remain. Between 1964-1973, the Americans flew 580,000 bombing runs over Laos and according to the Defense Department dumped 2,093,100 tons of ordnance on Laos. It is the most heavily bombed country in the history of the world. NPR reporter Lewis Simons says that to this day 1% of the dormant cluster bombs in Laos have been cleared even though the U.S. had pledged clearance.

The United States certainly could sign the Cluster Munitions Convention. The reasons given for use of the cluster munitions are lame. The primary reason given by the government is the temporary shortage of conventional artillery shells. We have a large back supply of cluster bombs. Jake Sullivan, Biden’s national security advisor also has used the argument that Russia is using them which is a strange argument when claiming the moral high ground.

Do we really need to be sharing a disgusting weapon of war that has been condemned by a majority of the world’s nations as morally reprehensible?

Cluster munitions are not any kind of military game changer. Russia has dug in and shifted to a long-term defensive strategy. It is time to recognize that the war between Russia and Ukraine is not winnable. It is stalemated. It may go back and forth with one side making incremental gains or sustaining losses but we can be certain of one thing: it will generate enormous human casualties for both sides.

As someone who sees Putin’s invasion of Ukraine as a continuing war crime, nothing has changed my mind about that but I have been bothered by the too-optimistic perspective of too much war reporting. War gets sanitized and the story is told with the true horror removed. The victory that never comes is right around the corner. This pattern is all too familiar for those who lived through the Vietnam war.

Instead of pushing for a new Cold War against Russia, there is a need to de-escalate both to reduce the threat of a larger European land war and to reduce the risk of nuclear war. At least during the original Cold War, there was recognition and concern about nuclear weapons and there was a nuclear freeze movement. By all appearances, the United States has lost that concern.

Cluster munitions should have been removed and banned from the battlefield long before now. Their evil became apparent during the Indochina war in the 1960s-1970s. The failure to ban cluster munitions is part of a broader failure of arms control. The only winner is the military-industrial complex which profits off every weapon system no matter how debased.

Although this association has rarely been made, the similarities between the 1920’s Ku Klux Klan and Donald Trump’s Make America Great Again (MAGA) movement are marked. Both movements have preached the centrality of being anti-immigrant. Both have been rooted in white supremacy. Both had and have a dark side of associated hate crimes. Both have wrapped themselves in the flag and pretended to be the most patriotic and pro-American.

I submit that to understand MAGA, the Klan must be considered as a formative background influence. MAGA didn’t spring full blown from the mind of Donald Trump. Many Americans like to hide the deep-seated racism which is part of our history and that is the case with the Klan. In the early 20th century it was far more influential than is now recognized.

When most people think about the Klan, I believe they think about the night riders, cross burnings and terrorism after the Civil War directed against black people. For that Klan, vigilantism was their calling card.

The 1920’s Klan was dramatically different. It was another kind of beast altogether. While it remained absolutely committed to white supremacy, it was not a secret organization. It published recruiting ads in newspapers and it strove to be mainstream. Like MAGA, its members included professionals, business people, farmers and wage workers. Also like MAGA, it advocated a brand of Christian nationalism. As bizarre as it may seem, in the 1920’s, joining the Klan then was connected to middle class respectability.

I had assumed that the Klan’s heyday was after the Civil War but that is wrong. In the 1920’s, the Klan made its biggest splash. This is described very well in two books, A Fever in the Heartland by Timothy Egan and The Second Coming of the KKK by historian Linda Gordon.

By the mid-1920’s the Klan had an estimated four to six million members across the U.S.. It experienced enormous growth in membership in the North, the Midwest and the West. In some states, like Indiana and Oregon, the Klan was a powerful political presence, effectively controlling state governments. It elected hundreds of its members to state offices and judicial positions. The Klan owned cops, prosecutors, ministers, mayors and newspaper editors.

Nationally, the Klan claimed 15 senators and 75 Congressmen under its control. Indiana was its strongest base with Klan chapters in 90 out of 92 counties in the state. This story has been erased from conventional historical memory. It is part of the American tendency to whitewash history to maintain the heroic narrative.

A stereotype that the Klan was a bunch of ignorant rural hicks was far from the truth. The historian Kenneth Jackson has written that the 1920’s version of the Klan was strong in cities. 50 percent of active Klan members in the 1920’s were urbanites. The Klan had thousands of members in cities like Chicago, Detroit, Indianapolis and Philadelphia.

The 1920’s Klan was heavily influenced by exponents of “scientific” racism and eugenics. Intellectuals like Madison Grant, author of The Passing of the Great Race, worried about non-Nordic immigrants like Italians and Jews. Linda Gordon says the Klan’s favorite term for the Whites they approved of was “Nordic”.

Probably the Klan’s biggest victory was around passage of the Johnson-Reed Act of 1924 named in part for Washington Klan Congressman Albert Johnson. That Act assigned quotas for immigrants in proportion to the ethnicity of those already in the U.S. in 1890. The design mirrored the Klan agenda for keeping out those they considered undesirables like Jews from Russia and Eastern Europe. The Act also excluded all Asians.

The Klan had a huge effect on public conversation about immigration much as MAGA has had over the last eight years. That Klan also talked about building a wall. The Johnson-Reed Act directly harmed European Jews who desperately needed to escape Nazi persecution both before and during the Holocaust. Hundreds of thousands of European Jews perished, in part, because of the odious quotas which effectively shut down Jewish immigration to the U.S..

I could not help but recall former President Trump’s comments in January 2018 when he said “we should have more people from Norway”. He also complained about “having all these people from shithole countries come here” and he cited Haiti, El Salvador and Africa. The New York Times reported that in a December 2017 meeting in the Oval Office Trump complained Haitians “all have AIDS” and Nigerians would never “go back to their huts”.

This could have been a Klansman speaking. The racism could not be more straight up. Just like the Klan, Trump has acted like he is protecting the “purity” of American citizenship. Now he wants to overturn birthright citizenship, something enshrined in the 14th amendment.

The Klan self-destructed in the late 1920’s because of corruption, internal feuds and its charismatic leaders like David Stephenson being convicted of rape and murder. Since the 1920’s to our time, America has never seriously and self-critically reflected on the racism and the xenophobia promoted by the Klan and other hate groups. We pretend to a dishonest colorblindness that avoids engaging history.

Xenophobia can be defined as fear, skepticism or hatred of foreigners. There is a long-term pattern of hating on new groups of foreigners who came to the U.S..The historian. Erika Lee says, “History shows that xenophobia has been a constant and defining feature of American life”. The pattern pre-dates the Klan.

When the Klan lost prominence at the end of the 1920’s, its ideas remained potent among millions of Americans. Unchallenged racism does not automatically disappear. On the contrary, it is often passed along as a family legacy.

Both the 1920’s Klan and MAGA have thrived on hate and fear. For the Klan it was immigrants, people of color, Jews, and Catholics. MAGA has a shifting hate list but it currently includes immigrants, trans people, and Black Lives Matter. Immigrants have remained a constant target of resentment.

Complicating the whole picture is the reality immigration driven by climate change will be an unrelenting part of the future. It is predictable that demagogues like Trump will gin up fear about brown hordes at the Southern border. Fascists internationally see playing the immigration card as their path to power. The strategy has been effective in Italy, Holland, Sweden and Hungary.

Probably the biggest challenge for all who support democracy is figuring a way to respond to this challenge. The Klan/MAGA approach of scapegoating immigrants for political gain is toxic. Xenophobia, not immigration, is the greatest threat.

For any student of the U.S. Supreme Court, the last term was anything but uneventful. The decisions crashed down and there was none bigger than the Court’s new decision on affirmative action, ending race-conscious university admissions.

In Students for Fair Admissions Inc. v President of Fellows of Harvard College, the Court’s conservative majority reversed decades of precedent that had upheld race-conscious admissions as consistent with equal protection. Chief Justice Roberts found that the universities’ affirmative action programs “lack sufficiently focused and measurable objectives warranting the use of race”.

Roberts found all racial classifications of any kind were equally harmful. In effect, he said there was no difference between centuries of racial discrimination against black people and targeted race-conscious efforts to help black people.

The weakness of Roberts’ analysis and the lack of historical awareness are mind-boggling. Implicitly he is saying that discriminatory treatment based on race is no longer a big problem. It seems to me there is much American history Roberts doesn’t want to consider.

Because of the centrality of the equal protection clause of the 14th Amendment, the history around that is a great place to begin. Before the Civil War, enslavement was an entrenched and growing system. Four million black people were trapped in the most brutal and inhumane conditions.

The Civil War upended the old order but white supremacy remained dominant. There was still a powerful Southern white resistance to Black legal rights. The question remained: how to make Black freedom a reality?

I would submit the the Reconstruction Amendments, including the 14th with its equal protection clause, must be seen in this historical context. They were part of a plan for securing key results of the Civil War in the Constitution of the United States. As Justice Ketanji Brown Jackson has said, the framers of the 14th amendment were not striving for colorblindness, they were “trying to ensure that people who had been discriminated against were actually brought equal to everyone else in the society”.

From the end of the Civil War into Reconstruction, Congress adopted a number of social welfare programs whose benefits were almost exclusively limited to blacks. Most prominently, Congress established the Freedmen’s Bureau to provide formerly enslaved people with basic necessities and to oversee their condition and treatment within the Southern states. The Freedmen’s Bureau faced enormous opposition but functioned from 1865 to 1872.

Possibly its greatest accomplishment was in setting up and establishing black schools across the South. The Southern states had prohibited the education of black people and barred them from possessing reading material or writing instruments. In some Southern states, laws had authorized death as punishment for violation. By 1870, there were more than 1000 schools for freedmen in the South.

Affirmative action stands in the tradition of the Freedmen’s Bureau. However imperfectly it has functioned, the intent was about rectifying a historical injustice. The 14th Amendment was expressly intended to allow race-conscious legislation.

Chief Justice Roberts’ analysis is devoid of the real historical experience of black people in America. He has minimized the harms that have been done and continue to be done by white supremacy. Roberts is following in the long, dismal and undistinguished tradition of the many Supreme Court justices who have accommodated racism and failed to act against it.

In American history, there are the blatant racist judges like Chief Justice Roger Taney who brought us the Dred Scott decision and there are the subtler racists like Chief Justice William Rehnquist who made his mark as a Republican in Arizona challenging black and Hispanic voters’ right to vote before he ascended to the High Court. Roberts is certainly closer to the Rehnquist model.

After the Civil War, unchecked murders and lynchings of black people were all too common. The Supreme Court disgraced itself in a slew of cases like United States v Cruikshank. The Court in that 1876 case failed to protect black citizens and exonerated violators of their civil rights. The Court threw out the convictions of white racists who killed approximately 150 African-Americans in Colfax, Louisiana.

The Court’s ruling opened the door to Klan night riders and white terrorists. Racial fascism dominated the South for another 75 years and the Supreme Court did not say boo. Progress on civil rights largely stalled until the civil rights movement came along and achieved some genuine progress. However, that progress should hardly be exaggerated. Any honest observer knows the United States has been backsliding for some time now back toward re-segregation, reversing the gains of Brown v Board of Education.

My lawyer friend Robin called the Supreme Court’s affirmative action decision the end of the Second Reconstruction. As Justice Sotomayor wrote in her dissent:

“Ignoring race will not equalize a society that is racially unequal. What was true in the 1860’s and again in 1954 is true today. Equality requires acknowledgement of inequality.”

As seems characteristic of this Supreme Court majority, they are anxious to reach a result. Stare decisis is no obstacle. Their decision did not engage the trial court record. The trial court had found the universities didn’t discriminate against Asian-Americans.

This is another one of those cases with a bogus plaintiff. The supposedly discriminated against Asian-Americans were MIA. Right wing activist Edward Blum, the plaintiff’s man behind the scenes, was the real moving party against affirmative action. As a plaintiff shopper, he had been gunning for affirmative action for years and he finally got the Court he desired.

I think Justice Jackson put it best:

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life.”

One weird wrinkle that undercut the decision was the majority making an affirmative action exception for military.academies. As Justice Jackson also said it is like blacks and other underrepresented minorities must be prepared “for success in the bunker and not the boardroom”.

Tellingly, the Court said nothing about preferential treatment for legacy admissions. This far more pervasive form of elite affirmative action received no mention in Roberts’ opinion.

So much more can be done to make college admissions more equitable, affordable and accessible. Cancelling student debt, allowing much more access to free public college, utilizing affirmative action based on socioeconomic disadvantage and ending legacy and donor-based admissions are all doable steps. The Supreme Court, with its history of ruling for the wealthy few and against the interests of working people, must not have the last word.

Last year, as we watched the U.S. Supreme Court destroy reproductive freedom for women, more attention was paid to the outcome of the Dobbs abortion case than the Court’s reasoning and justification. Justice Samuel Alito, Dobbs author, relied heavily on history in supporting his opinion.

What happened in earlier American history is contested terrain. I would submit that Justice Alito got his history very wrong. He argued that abortion was not deeply rooted in U.S. history and traditions. Alito wrote:

“…an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

Contrary to Alito’s assertion, in early American history, the common law did not criminalize abortion in all stages of pregnancy. As a medical procedure, abortion was widespread in colonial and 18th century America.

Abortion before “quickening” was legal and was widely accepted in practice. Quickening was the moment when women could first feel a fetus kick, typically between the fourth and sixth month of pregnancy. Back then, the common law didn’t legally acknowledge a fetus as existing separately from a pregnant woman, until quickening.

While the Court in Dobbs ignored it, the American Historical Association and the Organization of American Historians jointly filed an amicus brief that exposed how much history Alito got wrong. The historians pointed out that the decision in Roe v Wade accurately captured the historical landscape of abortion.

Except for mentioning two early male legal authorities, Alito only began his discussion with the 1860’s and 1870’s when some states started to restrict abortion rights. In their amicus, the historians show that the effort to restrict abortion rights only had partial success and never convinced the public.

The early anti-abortion movement was spearheaded by a small group of self-interested white male physicians. Doctors then were not held in the same high esteem they are today. The doctors opposed financial competitors like midwives and healers who were “irregular” practitioners.

The doctors did, however, allow until much later, an exception safeguarding the right to perform abortions for medical reasons. Alito conveniently skips over this.

The doctors’ movement to restrict abortion was both racist and sexist. They touted their own great replacement theory arguing that white native-born people would become out-populated by immigrants, “aliens”, Chinese and Catholics. A leader of the movement Dr. Horatio Storer and the early American Medical Association vigorously opposed the entry of women into the medical profession.

In their amicus brief, the historians wrote that the early physicians expressed “disapproval of women shirking their maternal duties for which they were “physiologically constituted” and “destined by nature”.”

The story of 19th century abortion history is beautifully told in Jennifer Wright’s book, Madame Restell. Probably the most famous abortionist in America during her time, Madame Restell had an enormous practice in New York City assisting women with reproductive issues. She became a very wealthy woman, offering a choice of available remedies besides having an operation.

There was no shortage of controversy in her life but her popularity was unsurpassed. Women of all social classes flocked to her. Always notorious, Restell did face several criminal prosecutions along the way. Most notably and later in her life, she was pursued by an intolerable prudish busybody named Anthony Comstock.

Comstock wanted to purify the world of all sinful temptation. He was freaked out by sex and sexually explicit literature. He ran an organization, the New York State Society for the Suppression of Vice. Disgusted by pornography, he went after those he considered purveyors. He was an early day book banner and was instrumental in passing the Comstock Act in 1873.

That law made it illegal to use mail to send anything “obscene, lewd, lascivious, indecent, filthy or vile” and any device of medication meant for contraception. It also banned through the mail every article designed, adapted or intended for producing abortion.

Posing as a friend of a woman needing help, Comstock showed up at Madame Restell’s doorstep. He then turned their meeting into an opportunity for criminal prosecution based on her willingness to help. Comstock had obtained a position as a U.S. postal special agent. Restell’s years of running ads in newspapers suggesting family limitation were over.

On the eve of trial, afraid of going to prison, Madame Restell committed suicide. During his career, Comstock drove fifteen people to suicide. He was not at all bothered by Restell’s suicide and he considered it a victory. He believed his desire to control women protected the traditional family.

Interestingly, the anti-abortion movement is now trying to bring the Comstock Act back from the dead. Because of its massive unpopularity, the anti-choicers could never hope to pass abortion bans by the franchise so they have resorted to looking at old laws to see if they can be revived. With Roe v Wade overruled, they want to resurrect the Comstock Act even though that Act has been a dead letter for generations.

In his April decision, Texas Federal Court Judge Matthew Kacsmaryk invalidated the Food and Drug Administration’s approval of an abortion pill, mifepristone.Mifepristone had been approved by the FDA for over 20 years. Judge Kacsmaryk relied in part on the Comstock Act. That case is now before the Supreme Court.

Around the same time, a group of evangelical ministers and New Mexico elected officials filed a lawsuit arguing that the Comstock Act overrode an abortion rights law signed by New Mexico’s governor, Michelle Lujan Grisham, that prevented local government from enacting ordinances to ban abortion in their jurisdictions.

Also, 20 Republican Attorney Generals invoked Comstock in a February letter attempting to pressure Walgreens and CVS to not distribute abortion pills. Walgreens caved on dispensing mifepristone.

While some of the Comstock Act has been rendered moot, and it appeared to be ancient history, Comstockery has returned. The corpse is walking dead and what is left is trying for a second act. The history of abortion may seem like an obscure topic but the enemies of women’s reproductive rights have been cherry-picking their history to advance a backwards agenda.

From Anthony Comstock to Samuel Alito , the sexism remains the same. Just like in the 19th century, men in the 21st century are still trying to control the lives of women.

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.