Conservatives Say They Care About the Constitution. Until They Talk About Criminal Justice.

“GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.

Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.

Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.”

“Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.”

“A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.”

The Reactionary Tradition Out To Annihilate American Liberty

“For portions of the MAGA right, the stakes in politics seem unbearably high. They imagine their elections stolen without consequences, their children menaced by transsexuals in the schools, their fathers’ manufacturing jobs shipped away by globalist corporations that mock their values. People whose worldviews sicken them seem to control every citadel of political and cultural power and to brook no opposition.

Even President Donald Trump seemed powerless to shift America back to the country they wanted. And so several institutions and thinkers of the intellectual right have declared that it’s time to take the gloves off in a way even Trump would not. It’s time, they argue, to fight against “liberalism”—not just the attitudes associated with the Democratic Party, but the historical idea of a social order based on people’s ability to make their own choices about what to do with their lives and property, to live and travel where they wish, to choose meanings, family structures, attitudes, and lifeways freed of any obligation to national or ethnic traditions. They want the American right to get tough and to crush progressivism at its root.

Thus, there has been a small intellectual revival of mostly forgotten or despised thinkers often dubbed “reactionary.” In A World After Liberalism, Matthew Rose of the Morningside Institute assesses five of them”

“These reactionary writers see, in Rose’s words, “humans as naturally tribal, not autonomous; individuals as inherently unequal, not equal; politics as grounded in authority, not consent; societies as properly closed, not open.””

Just how much is Trump’s judiciary sabotaging the Biden presidency?

“No one has ever elected Matthew Kacsmaryk to anything.

Kacsmaryk, whom former President Donald Trump appointed to the federal bench in 2019, was previously a lawyer for a Christian right law firm. He once claimed being transgender is a “mental disorder” and that gay people are “disordered.” He’s also one of the most powerful immigration officials in the country, having successfully wrested control of much of America’s border policy away from the man Americans elected president in 2020.

With the Supreme Court’s blessing, Kacsmaryk ordered President Joe Biden’s administration to reinstate Trump’s “Remain in Mexico” policy, which requires many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing.

Even if you ignore the moral implications of reinstating such a policy, there are good reasons to doubt that the policy is a good use of America’s limited border security resources. And Kacsmaryk’s decision is also unlawful for numerous reasons.

One of the most important reasons is that it upends the balance of power between the president and unelected judges. Reinstating the Remain in Mexico program requires the Mexican government’s cooperation — which means that Kacsmaryk ordered the United States to change its diplomatic stance toward Mexico. And that’s despite decades of warnings from the Supreme Court that judges should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”

Kacsmaryk’s decision, and the Supreme Court’s decision to stand with Kacsmaryk against President Joe Biden, is one of the most dramatic examples of the Republican-controlled federal judiciary’s many conflicts with America’s Democratic president. But it’s hardly an isolated incident.

In just four years as president, Trump remade the federal judiciary — all with a big assist from a Senate Republican leader willing to break any norm in order to ensure GOP control of the courts. Trump appointed a third of the Supreme Court and nearly a third of all active appeals court judges. He also peppered federal trial courts with conservative activists like Kacsmaryk, who are eager to overturn some of the most fundamental assumptions of US law.

Nearly one year into Biden’s time in office, the result hasn’t exactly been a bloodbath for his policies — in contrast to the seemingly never-ending array of lawsuits seeking to repeal Obamacare, no federal judge has yet tried to repeal Biden’s major legislative accomplishments such as the American Rescue Plan or the Infrastructure Investment and Jobs Act. But in two areas in particular, immigration and public health, the courts have been unusually aggressive.”

“if the Supreme Court wanted lower-court judges to stop ignoring precedents that permit President Biden to govern, it could intervene to stop them from doing so. Instead, it has rewarded many of the most aggressive conservative innovators within the judiciary.”

The Federalist Society’s newest enemy: Corporate America

“In a market society, economists Milton and Rose Friedman wrote in 1979, “the consumer is protected from being exploited by one seller by the existence of another seller from whom he can buy and who is eager to sell to him.” In theory, if one company adopts “woke” branding that offends its customers, then the market will deliver those customers into the waiting arms of a competitor.

Yet, rather than waiting for the hand of the market to deliver an invisible spanking to “woke” corporations, speaker after speaker at the Federalist Society’s convention called for a central planner to intervene. ”

The intellectual right’s war on America’s institutions

“It’s easy to dismiss this kind of illiberal language as purely rhetorical: radical posturing with few practical implications. But the past year of conservative politics, from the January 6 riot to the spread of voting restrictions and extreme gerrymandering to the rise of Rufo’s war on the education system, has shown that the right’s illiberal impulses are actually shaping our reality.

Conservatism, in theory, is supposed to be an ideology of preservation. But the current right is increasingly being shaped by a reactionary impulse bent on the radical transformation — if not the outright destruction — of America’s leading institutions.”

The Supreme Court’s Conservative Revolution Is Already Happening

“in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.

That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.”

“According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008”

“Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.

Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.

The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing.”

The nihilism of Neil Gorsuch

“Neil Gorsuch was ready to blow up the US housing market over a minor legal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA is led by a single director whom only the president can fire “for cause.” The plaintiffs in Collins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. In June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s past work.

But Gorsuch would have none of it.

In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”

If Gorsuch had gotten his way, 13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.

It wasn’t the only case this term where Gorsuch brushed aside worries about widespread disruption that could have done tremendous harm to millions of people.”

“The lodestar of Gorsuch’s rhetoric about how judges should interpret the law is “textualism,” which he described in a 2020 book as the idea that judges’ sole task when interpreting legal texts is to determine “what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.””

“In reality, this method rarely lives up to such lofty promises. Many legal texts (including much of the Constitution) are ambiguous and can be fairly read in many ways. And what should a court do if it concludes that a century-old decision — one that millions of individuals and businesses may have relied on for decades — misread the text of a statute? Should 100 years of settled law be upended?

Setting aside textualism’s flaws, Gorsuch’s record on the Supreme Court exposes just how spotty his application of the methodology is. Though his own opinions frequently preach the gospel of textualism, he’s shown no compunction about joining other justices’ opinions that treat the text of a statute as merely optional.”

“Gorsuch is also perfectly willing to follow anti-textualist precedents that yield conservative results.”

“Gorsuch’s commitment to textualism can be little more than hot air. He is a selective textualist, who frequently evangelizes in favor of this method of interpretation but often abandons it in cases that reach a conservative result.”

“When Gorsuch has the chance to write a majority opinion, in other words, he typically shoots for the moon. His jurisprudence shows utter disregard for the norms of an institution he now belongs to, and for the work of generations to come up with a system of law that can manage a pluralistic society. It’s a revolutionary project, breathtaking in its audacity and nihilistic at its core.”

Conservatives Are Asking You To Disbelieve Your Own Eyes

“The numbskulls who stormed the Capitol, some of whom are facing modest prison sentences for their role in the clownish putsch, didn’t show up by happenstance. “All of them—all of them were telling us, ‘Trump sent us,'” according to recent testimony at a U.S. House of Representatives hearing by a U.S. Capitol police officer who fought back the insurgents.

Not every participant in the day’s sordid events engaged in violence or vandalism, of course, and whatever punishments the courts mete out should fit the particular crime. But this was no tourist visit gone awry. Not every person who joined in left-wing attacks in Portland committed crimes, either, but I don’t suppose Trump supporters would cut those folks slack.

The Trumpsters’ silliest argument is that Antifa, the fascistic “anti-fascists” who turned portions of U.S. cities into rubble, were behind the Capitol event. Conservatives touted that narrative immediately after January 6. Apparently, that loose-knit movement runs so meticulously that it recruited thousands of volunteers who acted exactly like Trump supporters.

Why believe your own eyes? Sure, a few lefties might have infiltrated the pro-Trump mob. That doesn’t make it an Antifa riot. The Portland scene wasn’t a right-wing event because a few right-wing infiltrators may have joined in the action. I’ve attended many protests and guarantee that they attract all sorts of nut jobs. It’s not hard for anyone to gain admission.

Despite GOP efforts to rewrite history, my eyes confirm the conclusion drawn by conservative writer David Frum: “The January 6 attack was incited by the head of the American government, the man who had sworn to protect and defend that government. It was the thing most feared by the authors of the U.S. Constitution: a betrayal of the highest office by the holder of that office.”

Here’s the problem. It portends dangers for the future if so many conservatives refuse to cop to the obvious truths of that day. If we can’t all agree on basic, obvious facts about an event that unfolded before our eyes, then we’re headed toward a well-trod path of internecine struggles where we just pick a side and fight to the bitter end.”

“My problem is with the political right’s movement toward, well, authoritarianism, exemplified by its refusal to embrace facts that don’t conform to their alternative reality—and their unwavering support for a man rather than a set of ideas. It’s ironic that the man they’ve chosen to follow seems to embody moral characteristics they’ve long railed against, but go figure.

Even GOP leaders who know better and occasionally speak out against Trump’s disinformation—House Minority Leader Kevin McCarthy (R–Calif.) and Senate Minority Leader Mitch McConnell (R–Ky.)—always end up toeing the party line. They dare not defy Trump or his base voters.”

How Trump Has Redefined Conservatism

“In 2004, Pennsylvania Rep. Patrick Toomey was the face of the conservative insurgency. An anti-taxes, anti-spending hawk, Toomey was one of many conservative upstarts who primaried a more moderate fellow Republican; in Toomey’s case, longtime Pennsylvania Sen. Arlen Specter.

The Republican president at the time, George W. Bush, sided with Specter, who ultimately won by less than 2 percentage points. After Specter switched parties in 2009 when polls showed Toomey defeating him in a primary, Toomey won the seat in 2010.1

But despite the conservative bona fides that helped Toomey get elected, he experienced backlash from the GOP after becoming one of seven Senate Republicans to join Democrats in voting to convict former President Donald Trump in his second impeachment trial.

Toomey’s transition from conservative insurgent to a pariah among certain factions of his party is not unique, though.

Sen. Mitt Romney called himself “severely conservative” during his 2012 presidential bid and planned to repeal the Affordable Care Act. But when he became a senator years later, he often bucked Trump’s agenda and twice voted to convict Trump in his impeachment trials, facing a drumbeat of criticism from Republicans in response.

To be clear, Toomey, Romney and now-ousted GOP party leader Rep. Liz Cheney have not abandoned the policy views that a decade ago flagged them as conservatives. But in the interim, Trump and his presidency may have shifted the ideological ground beneath their feet.”

“looking just at our 2021 survey data, a politician’s support for Trump has come to define who party activists think of as conservative. Romney, Toomey and Sasse were all rated as fairly liberal Republicans despite their conservative voting records in Congress”

“Staunchly pro-Trump politicians (or Trump-adjacent politicians), like Florida Gov. Ron DeSantis, former Vice President Mike Pence, Sens. Tom Cotton, Josh Hawley and Lindsey Graham, and Trump were all clustered together on the more conservative end of the spectrum, even though there is quite a bit of difference, ideologically speaking, between these men.”

“despite his ideological heterodoxies, Trump was rated as more conservative than all but 10 of the 114 politicians we asked about. Ideology, in other words, isn’t just about policies.5”