The Rise of Right-Wing Hacks in Federal Courts

Over Labor Day weekend, Trump-selected judge Aileen Cannon ordered the appointment of a special master to review the material seized by the Justice Department from Mar-a-Lago—a move that will allow the president to delay the ongoing investigation. It’s a result that everyone with half a brain could have spotted from a million miles out: Trump sought out the judge most willing to bend the rules in order to help him wriggle his way out of trouble. 

But this didn’t prevent many legal experts from reacting with slack-jawed shock to Cannon’s order. “This special master opinion is so bad it’s hard to know where to begin … her analysis of standing is terrible,” tweeted law professor Neal Katyal. “Judge Cannon’s order is riddled with fundamental legal errors and is the opposite of judicial restraint,” added lawyer Ted Boutrous. Former FBI agent and Just Security editor Asha Rangappa insisted that “Cannon clearly did not have a strong grasp of the salient issues.” The Atlantic’s Andrew Weissmann ran down the many ways in which Cannon’s decision was “untethered to the law.” Former Nixon White House counsel John Dean quote-tweeted Weissmann, writing “It’s a mess!” Everywhere you looked someone was reacting in similar fashion: But … how could she?

To answer that question, we need to get the experts caught up on current events. It should be apparent to everyone by now that the conservative legal movement and its foot soldiers in the judiciary have ideological goals in mind and a political agenda they want to pass via the superlegislature once known as the judicial system. But many members of the judicial commentariat seem to be stuck in the world they remember, not the world we live in now. To these experts, the right is still beholden to the law—it still needs to tick the appropriate jurisprudential boxes, consider long-standing legal precedent, and follow the established rules. 

With that in mind, the experts look at Cannon’s decision and see balderdash everywhere. What they don’t get is that Cannon looked at her balderdash and thought, “Well, who’s going to stop me?” There are no “judge cops,” you see, only other judges, and if all roads eventually lead to the Roberts court, there’s no reason for her to worry too much about whether she’s stuffed a bunch of legal half-assery into her rulings. As TNR’s Matt Ford has reported, Cannon’s hardly the first lower court judge to indulge herself in some right-wing hackery. She won’t be the last.

The Supreme Court has led the way with decisions that are increasingly untethered to judicial precedent, the Founders’ ideals, and in some instances, the very facts of the cases on their dockets. Because of this, conservatives have been generally emboldened to stake more aggressive claims in their suits and filings, in order to test the limits of preposterousness, like velociraptors pushing against the weaknesses in Jurassic Park’s fencing. That is why even though a lawsuit to take down President Joe Biden’s student loan forgiveness plan suffers from some fatal standing issues, Texas Senator Ted Cruz is said to be “brainstorming” a workaround. He knows that he’s as likely to prevail with nonsense as he is to succeed with some supergenius-level lawyering.

As TNR contributor Aaron Regunberg noted in these pages, the alternate reality unfolding in front of us has already made wide swaths of the bar exam look more like a historical document than a test of current legal knowledge. In a world where jurisprudence is unmoored, what will future generations even learn in law school?  At some point you wonder if conservatives will keep bothering to even offer up slopcore legal reasoning, when it’s just as easy to offer jabberwocky instead.

Legal experts can gawk at the goings on in disbelief, exclaiming, “This can’t be happening!” all they like. But it is happening and has happened. Those trying to confront this moment by repeatedly insisting that this weirding of the judicial system can be repaired if only someone explains the rules hard enough are, as Slate’s Dahlia Lithwick and Mark Joseph Stern point out, displaying the impotent “tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away.” 

Lithwick and Stern continue: 

[In] this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

So then, what is the plan? As TNR’s Simon Lazarus argued, liberals must forcefully discredit the legal arguments that the Supreme Court’s conservative bloc is offering while there’s still time to rebut them. But as Lithwick and Stern point out, the most immediate solution to this dire problem is one that Democrats have been heretofore skittish about contemplating—adding judges to the courts. 

The good news for now, though, is that we can begin by adding judges at the lower court level, where the much larger case backlog justifies such a move, and hopefully avoid the all-but-certain national mainstream media–driven trauma that would follow any attempt to pack the Supreme Court. Increasing the number of judges in these venues could help the jurisprudential traditions that are now being gutted gain a new foothold and lessen the opportunity for conservatives to forum-shop their way to victory. The bad news, of course, is that unless Democrats are planning on holding both houses of Congress, Biden only has a few weeks left to do the job.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

As the Republican Party descended headlong into Trumpism, one lingering question has doggedly remained a point of fascination for pundits and political analysts: Did they fall, or were they pushed? There is a long list of culprits blamed for sending the GOP past the point of no return, from Jeb Bush to Barack Obama; from the Citizens United decision to gerrymandering. Nixon, FDR—even Kim Kardashian has made this list. But on social media in recent days, we’ve seen a slight uptick in one popular version of the Trump origin story: Republicans were radicalized by the tawdry way liberals treated Mitt Romney during his 2012 election run.

I’m not normally interested in what a few people happen to be tweeting. But this is no mere passing fancy. The lore surrounding Republicans being forced into a psychotic break because Mitt Romney was treated indelicately has been around for a long while. As Vox’s Zach Beauchamp reported in 2020, “Many conservatives have embraced” the idea that “Democrats smeared the kind and decent Romney so brutally … that Republicans became inured to this kind of argument and convinced there was no advantage to playing nice anymore.… Call it the ‘look what you made me do’ theory of How We Got Trump,” Beauchamp writes.

It’s an alluring cop-out. It’s clear that many really want to believe it. But I have long memories of the 2012 election and its aftermath, and folks, these claims don’t add up.

Make no mistake: The people behind Obama’s reelection campaign did what they deemed necessary to win. Romney was mercilessly characterized as an out-of-touch plutocrat, a step back in the direction of the vulture capitalists who brought the economy down in 2008. Romney’s biggest problem was that this particular shoe fit a little too snugly.

But sure, the Obama team wasn’t pure as the driven snow during that campaign, and liberals didn’t exactly strive to be some model of decorum either. Obama fans dined out on lots of shallow, mean-minded stuff like Romney’s equestrian interests and the saga of his family’s roof-bound pooch. Obama and his allies had plenty of ignoble moments as well. Romney’s comment that he “liked to fire people” was ripped from its context and used to paint him as an unfeeling toff. Then–Vice President Joe Biden knew he was punching below the belt when he told the crowd at a Danville, Virginia, rally that Republicans were “going to put y’all back in chains.”

But politics, as they say, ain’t beanbag; most of this stuff was fairly normal, relative to presidential campaigns. Little of this particularly rose to the level of, say, the Swift Boat Veterans for Truth. One thing that came close was an egregiously mendacious ad by an Obama-affiliated super PAC that essentially blamed Romney for a steelworker’s wife’s cancer diagnosis and death, while Romney was running Bain Capital.

But when it came to doing Romney dirty, Democrats had some pretty strong Republican rivals. While Obama criticized Romney’s Bain Capital past, it was Newt Gingrich who released an entire documentary about Romney’s allegedly destructive tenure as the firm’s head. Over the course of four months in 2011, Bill Kristol wrote seven separate columns for The Weekly Standard about how much he disliked Romney and wanted a different candidate to wrest the nomination from him. The antipathy of conservatives dogged Romney throughout the campaign and prompted some of his worst moments: his weird insistence that he was “severely conservative”; his infamous call for immigrants to “self-deport” themselves; and his quest to earn the endorsement of Donald Trump, who was then at the height of his reign as King of the Birthers.

In the wake of the Bain Capital cancer ad, campaign spokeswoman Andrea Saul went on television to defend Romney and, along the way, said, “To that point, if people had been in Massachusetts, under Governor Romney’s health care plan, they would have had health care.” This was a huge mistake. Saul was subsequently pilloried by conservatives for defending him by invoking such a (gasp) liberal achievement—by that point, Obamacare was the law of the land and it was verboten for Romney to mention his Massachusetts health care innovation. Romney was even forced to cut a line from his book about bringing that reform to the entire nation.

This was perhaps the greatest wrong done to Romney. The entire reason he had emerged as a presidential contender among Republicans was because he understood that there were problems that needed solving and that conservatives needed to compete with liberals in a war of ideas to solve them. Romney may be the only Republican in Washington who’s actually notched a recent major policy accomplishment that was celebrated across partisan lines: His Commonwealth Care was an example of this brand of politics; when there were enough Republicans interested in co-opting liberal issues and beating Democrats to market with solutions, Romney was top dog. He won the Conservative Political Action Conference straw poll four times between 2007 and 2012. But as I wrote in 2012, the party turned on him: “For all of the grief that Romney has taken for his multitude of flip-flops over the years, those are not, collectively, as damaging to Romney’s ambition as the way the Republican Party has flopped on him.”

Conservatives may want, even need, this ersatz martyrdom of Mitt Romney to exist to explain away their Trumpian turn, to spin the story that liberals’ treatment of Romney’s shortcomings gave them no choice. This all neatly forgets the fact that Republicans very much could have taken a second path but chose to abandon it. They sure have a funny way of treating their martyr, though. In 2020, CPAC chairman Matt Schapp told Greta Van Susteren that the four-time straw-poll winner would not be physically safe if he attended the conference. The fact is that Republicans have long been, and continue to be, Romney’s most dedicated persecutors. And through their persecution of him, they gave themselves permission to make their radical turn a long time ago.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

“Did the Inflation Reduction Act quietly save the administrative state?” That’s the big question that TNR’s Kate Aronoff took up this week after The New York Times and others reported on an eye-catching bit of fine print in the Inflation Reduction Act, or IRA. Running through the legislative text is language that “define[s] the carbon dioxide produced by the burning of fossil fuels as an ‘air pollutant.’” The detail may seem minor, but its inclusion could be a “game changer,” designed “specifically to address the Supreme Court’s justification for reining in the EPA” in last term’s West Virginia v. EPA decision, at least according to the Times’ Lisa Friedman. 

As we’ve noted on these pages before, the high court’s conservative bloc has recently ramped up its war against the administrative state. To that end, it has demonstrated a propensity for disallowing executive branch agencies from having the broadest possible latitude in interpreting the legislative branch’s instructions. So the way the IRA defines carbon dioxide in this explicit fashion, in the Times’ telling, is a defense against these judicial dark arts. 

This language shift didn’t go unnoticed by conservatives, and it elicited a very curious response from Texas Senator Ted Cruz, who said, “It’s buried in there … the Democrats are trying to overturn the Supreme Court’s West Virginia v. EPA victory.”

But as Aronoff explained, the mere existence of this language in the bill’s text doesn’t actually repeal anything. The Supreme Court’s decision in West Virginia v. EPA still stands, and its larger implications should remain a cause for worry. But even if including this revised definition of carbon dioxide doesn’t overturn a Supreme Court decision, it might herald the overturning of a school of thought among liberals on how to confront the court, and signal that Democratic legislators intend to apply some more strategic thinking to the challenges posed by the court’s conservative majority.

Cruz’s statement was a moment when the mask slipped. It’s rather unusual to characterize a Supreme Court decision as a “victory.” It’s a weird thing to say about an allegedly august institution that bills itself as a neutral caller of ball and strikes as it interprets the Founders’ intentions and sorts through a body of legal precedent. It’s like saying that the umpires defeated the Houston Astros in the 2021 World Series. And as MSNBC’s Steve Benen notes, Cruz was being oddly salty about congressional lawmakers simply doing their job: using their majority to pass laws. “I understand that Cruz disagrees with the underlying policy,” writes Benen, “but why take issue with a democratic governing process?”

In this case, I think the Texas senator’s complaints fairly neatly expose what’s at work: Cruz sees the high court’s conservative majority as a “victory” in an ongoing ideological project. And he’s not wrong—that is precisely how the court’s conservative bloc see it as well. Their end goal has long been apparent: They want to kneecap Congress and install themselves as an unelected superlegislature with veto power over the executive and legislative branches. 

What makes the “administrative state” work is the interplay between these branches. Traditionally, the Supreme Court has granted the executive branch agencies broad discretion to interpret laws, which allows them to be nimble as the times change but the laws don’t. As I’ve previously noted, “An EPA that couldn’t rely on that leeway would need Congress to constantly pass new laws directing it how to proceed on every matter in its purview and then pass additional new laws covering the same ground as circumstances changed.” 

The IRA’s revised definition of carbon dioxide won’t thwart the Supreme Court’s conservatives, but it demonstrates that Democrats on Capitol Hill are taking their threats more seriously. As frequent TNR contributor Simon Lazarus tells me, “The most important takeaway from the IRA provisions is not exactly what they say, or how they will strengthen arguments against, for example, the court deploying the major questions doctrine to overturn important new EPA actions. Rather, what is important is the political fact that Democrats acted at all to take on [a Supreme Court] intent on micromanaging Congress and executive agencies and in the interest of Republican agendas and interests—in particular, the priorities of Republican megadonors who also happen to have funded the justices’ ascent to the power they now possess on the court.” 

This week’s news augurs something of a sea change, in which Democrats are alert and alive to the challenge and have started to think more strategically about countering the conservative judicial movement. This is long overdue. Back in 2021, President Biden asked a White House commission to weigh various ideas to reform the Supreme Court during a time of grave concerns about its legitimacy; the commission’s report offered scant solutions. As recently as July, there were concerns in liberal circles that Biden was failing to meet the problems that the Roberts court presented head-on.  

As Lazarus wrote in these pages back in June, liberals “must embrace a hybrid genre of political-legal combat,” discredit the legal arguments of the conservative bloc, and advance new and novel legal arguments of their own. The language in the IRA that’s being touted by environmental advocates may be the first stirrings of this larger battle. But at the very least, we can all finally acknowledge the facts as Ted Cruz understands them: The Supreme Court’s conservative justices are ideological actors, through and through. 

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

As I noted last week, the FBI’s raid of Donald Trump’s Florida redoubt spurred Trump’s defenders into a frenzy of hot anger, the onrush of which, as my colleague Matt Ford noted, may have been a wee bit premature, given the revelations that quickly emerged. But the reaction has been just as exuberant from the left. Merrick Garland, who’d up until then been a fixture of impatience and discontent among liberals hoping he’d apply a more Javert-like zeal to his pursuit of Trump, was suddenly an unlikely meme hero. After an interminable wait for the Justice Department to put Trump in a legal bind, Dark Merrick had finally did it on’ em.

But while the outpouring online is understandable, I’d urge Garland’s newfound fan base to follow his lead. As I previously noted, the straitlaced, even dull, persona he’s created for himself hasn’t lent itself to spectacle or emotional catharsis. But it’s been a great tone for the leader of an agency in bad need of a restoration to set. This is an excellent opportunity to embrace the Garlandian virtues of dull normalcy. Between now and the next presidential election, Democrats should do whatever they can to Make America Bored Again. What was the point of a Biden administration, anyway, if not the total assertion of a dull, normie, incremental political aesthetic as one of the better alternatives to four incompetent and cruel years under Trump?

Order is not something that Biden has always successfully established or maintained: His withdrawal from Afghanistan was more haphazard than it should have been; the road out of the pandemic has been and continues to be rocky. In recent weeks, however, Biden’s manifested a more serene vibe: His party, at long last, came together to pass a legislative agenda after a year of discord. The Inflation Reduction Act may be the balm for what’s ailed a fractious party that sparred over the Build Back Better Act.

Compared to Build Back Better’s top lines, the IRA looks like a picture of moderation. But as TNR’s Michael Tomasky notes, it’s also quietly revolutionary at its core. Newly signed into law, the IRA “begins to turn 40 years of bad economic conventional wisdom on its head by asserting that the government has a role in structuring markets, promoting growth, and guiding industrial policy,” Tomasky writes. The ship of state is being gently steered into better waters; those Democrats who fought for better and more generous policies now have a much firmer foundation from which to make new demands as a result. Coupled with Biden’s throwback views of the labor market, this means Democrats now look like a more cohesive and united party, and they’ll be able to campaign on an economic message with real possibilities.

Meanwhile, the GOP has embraced an all-havoc, all-the-time platform. Post-Roe America is turning out to be a nightmare in all the ways that liberals warned. Political violence is becoming more prevalent and more obviously a product of right-wing ideology. GOP candidates are growing stranger and more alien by the day. Conservatives are banning books and threatening children’s hospitals. And the party of Lincoln has torn down its monuments to the sixteenth president and erected busts of Hungarian autocrat Viktor Orbán in their place. Stem to stern, the GOP is sailing with a full complement of unreconstructed chaos agents.

Naturally, one of the ideas that those chaos agents are raising right now, as the investigations into the former president’s dealings advance on multiple fronts, is that the very act of bringing Trump to justice could plunge the country into turmoil. It’s an argument that Trump, in particular, hopes will be convincing, if only to save his own skin. And as The Washington Post’s Paul Waldman and Greg Sargent report, it’s also an argument that’s finding some purchase in the discourse, as media elites wonder if Garland shouldn’t try to tamp down the tense situation.

But as Sargent points out, those tensions exist only because of “GOP demagoguery,” and it’s not Garland’s “job to shape the legal response around GOP noisemaking.” Besides, the long-term chaos caused by creating a culture in which no one is held accountable outstrips the short-run chaos of a news cycle in which the dumbest pundits in the land demonstrate how susceptible they are to right-wing propaganda.

Democrats have the opportunity to draw an important contrast to the Republican vision of America, and the calm sobriety that Garland has recently projected is a model for Democrats to follow. Not long ago, I proposed that Democrats should promise voters that they’ll fight for the Good Life—a pledge to deliver more shared prosperity, more widely distributed political power, more political stability, all to allow all Americans to have more time to spend with the people they love. Chaos is the enemy of this agenda. This is a ripe time for Democrats to make a big bet that there are more people out there who want a calm and prosperous country instead of an unruly one.

One of the most compelling things about Merrick Garland is how fundamentally uncompelling he is. Back when then-president Barack Obama nominated him for the Supreme Court, he was tapped because he was an uncontroversial choice, all the better to win some votes from Republicans. (Things, obviously, didn’t go according to plan.) Now, he’s possibly the least charismatic member of the Biden Cabinet. The least photogenic as well: I can tell you firsthand what a struggle it is to find an interesting photograph of him. None of these traits seemed to be particularly advantageous—until, perhaps, this week, when the unassuming figure signed off on a warrant for federal agents to search Mar-a-Lago, President Donald Trump’s post-presidential way station.

It wasn’t immediately clear what exactly the Department of Justice was looking for at Trump’s resort. Most of the reporting on the matter suggested that the warrant pertained to the president’s alleged mishandling of classified materials, which The Washington Post later reported included “documents relating to nuclear weapons.” Garland confirmed this on Thursday afternoon and proceeded to ask for the warrant to be unsealed; The New York Times reported earlier in the day that the DOJ sought to recover those materials with a subpoena long before the warrant was executed. It’s also worth remembering that just because a warrant gets served, that doesn’t mean arrests or indictments are necessarily in the offing.

But what the subpoena news demonstrates is how unlikely it is that Garland or other high-ranking federal law enforcement officials would escalate in this manner without a good reason—and remember, a judge must also agree that there is just cause to serve a warrant. If those who sought and issued this warrant don’t have their ducks in a row, then the blowback will be intense. At the same time, even if everything was done by the book, the politicization of the whole fracas means that blowback is inevitable regardless.

But it’s here where Garland’s bland persona may serve him. There are many things you can say about him, but it’s a real challenge to characterize him as some sort of partisan firebrand. Indeed, for the bulk of his tenure, his seeming lack of passion for pursuing Trump with a Tommy Lee Jones-like zeal has left liberals vexed. Last October, California Democrat Adam Schiff, who played a leading role in Trump’s impeachments, said that he was in “vehement” disagreement with Garland’s seeming reluctance to hold Trump accountable.

As TNR’s Matt Ford has pointed out more than once, Garland never promised to be a Democratic avenger, nor has he at any time cultivated such a persona. What he has successfully communicated is that the Attorney General’s office would not be defined by some monomaniacal pursuit of Trump. The biggest task for Garland when he assumed office was the revival and restoration of the DOJ as a functional and independent institution after the wayward tenure of his predecessor, Bill Barr, during which time it really did seem like the DOJ could become a private tool of executive branch retribution.

It won’t be possible to escape the politicization of a DOJ investigation into Trump; some matters are beyond Garland’s control. But let’s note how Trump’s allies are responding: They’re foaming at the mouth about Garland being a corrupt autocrat whose actions are like unto dictatorships. As MSNBC’s Steve Benen pointed out, the seeds of this Garland smear campaign were planted long before federal agents descended on Trump’s resort. The GOP anticipated the possibility of further and more serious legal tribulations for Trump, probably because they have intimate knowledge of just how bad his misdeeds were.

But it’s going to be hard to make such a characterization stick to Garland. In dictatorships, government officials don’t serve search warrants or seek the permission of judges to carry out seizures; they don’t offer you a chance to amiably resolve the dispute in advance; they don’t give the people they’re trying to suppress a chance to make their case in public; they don’t assert the presumption of innocence or provide a forum for the accused to prove their case. More to the point, they don’t wait years to punish their political opponents. Indeed, Iraqi dictator Saddam Hussein, who Republicans might recall, undertook a violent purge of his government six days after taking power in what’s colloquially remembered as the “comrades massacre.” That’s a far cry from how Garland behaved, no matter what Republicans might allege.

What’s more, the only people talking about purges and political violence are Republicans. Trump is the one planning a mass dismissal of government bureaucrats if he’s reelected. And if you want to hear someone promising the dawn of autocracy, look no further than Florida Senator Marco Rubio, who in the wake of l’affaire Mar-a-Lago issued a not-so-vague threat: “What comes around goes around. And here’s what’s gonna happen now—one day they won’t be in power. And whoever is in power, there’s gonna be a lot of pressure on them to do it back to the other side. And now we do become a banana republic.” This is a pre-confession; in this scenario the “whoever is in power” is—according to Marco Rubio—Marco Rubio.

I almost feel bad for Trump’s allies, all of whom have spent the past half decade in a ruthless, backstabbing reality show about the sunk cost fallacy. But here’s the scoop: The guy is a corrupt dude who does crimes. By now, if you’re backing him, it’s because you’re itching to serve under the thumb of a caudillo; you are actively seeking political bloodshed and the disintegration of the Founders’ ideals. There are plenty of people on hand, right now, scratching and baying to become handmaidens to autocracy. Merrick Garland isn’t one of them.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

With a few months remaining before voters go to the polls for the midterm elections, no one should be under the illusion that the economy is offering Democrats many political advantages. Elites are arguing about whether we’re in a recession. Maybe we are, maybe we aren’t, but the very existence of that debate is not a great sign. Meanwhile, after a long period in which they didn’t seem to want to talk about inflation, beyond halfheartedly pinning the blame for it on Russia’s invasion of Ukraine, the Democrats have only belatedly realized they can’t run from the issue and have renamed the Build Back Better Act as the Inflation Reduction Act (the bill itself got quite a reduction, too).

While these factors are far from ideal for Democrats, there are economic conditions worth highlighting—especially where the labor market is concerned. Federal fiscal relief helped engineer a swift recovery relative to the 2008 recession. The unemployment rate is low and employers are competing for talent rather than batting away job applicants. According to the Bureau of Labor Statistics, there are 0.6 unemployed persons per available job, which means there are about two job openings available for every unemployed person. And the recent boffo jobs report suggests that this part of the economy is still cooking with gas.

This is the sort of labor market that President Biden wanted to create, and for good reason: During his vice presidency, the Great Recession sent that ratio as high as 6.5 workers per job opening. It was a time of real despair for American workers, who largely shouldered the losses of Wall Street’s irresponsible gamblers. That workers took it on the chin was hardly celebrated as an act of patriotism. In fact, in the first midterm election after the recession began, the long-term unemployed were being regularly maligned by Republicans such as Senator Rand Paul, who on the campaign trail characterized the unemployed as people who needed to accept “a wage that’s less than we had at our previous job” in order to get off the dole. “Nobody likes that,” he said, “but it may be one of the tough love things that has to happen.”

And yet, here we are twelve years later, with workers off the dole and in jobs, and they’re still being maligned for their insufficient fealty to the demands of capital. Where their biggest sin was once nursing from the government teat, they’re now under the gun for coasting along in a market that’s suddenly become favorable to worker interests. The fact that workers might now be able to move more freely from a bad job to a better one, and command a better wage than they did at their previous place of employment, is somehow also seen as a problem in some quarters.

Last week, The Intercept’s Ken Klippenstein and Jon Schwarz obtained a private memorandum from a Bank of America executive who rather bluntly stated that his hopes that conditions for American workers might get materially worse.* The memo—which its author, Ethan Harris, characterized as a “mid-year review”—expressed grave concerns over the leverage that workers have at the moment. “By the end of next year,” Harris wrote, “we hope the ratio of job openings to unemployed is down to the more normal highs of the last business cycle”—that is, a ratio more conducive to employers having the leverage again.

As Klippenstein and Schwarz note, the memo “tells us what we suspected all along: The most powerful economic actors in the U.S.—entities like Bank of America and its clients—do not like working people to have power.” But this should probably come as no surprise: Intermittent presidential advisor and capital-class amanuensis Larry Summers has, in similar terms, endorsed the idea that American workers must give up their labor market gains in order to end inflation.

But in a speech during a recent conference on “Inclusive Populism,” author and TNR contributor Zach Carter was singularly unsparing in his critique of this anti-worker position:

Anyone who calls double-digit unemployment a solution to anything does not belong in politics. But the reasoning in play here should simply horrify people who believe in democracy. The most important cost-of-living issue for families this year is housing—in many cities, rent has exploded. Ask yourself: if the goal is lower rent, should we a) build more houses, or b) indiscriminately fire a large number of people from their jobs? The latter is the serious contention of this newly revived austerity brigade.

To contemplate engineering a spike in unemployment, at a moment where our republic is in genuine peril, is truly deranged. We need more stability and social cohesion right now, not less. And for the Democratic Party, which happens to be the only major party that wants to preserve the American experiment in multiracial democracy, there is a desperate need to connect better with voters outside of the affluent college-educated Americans they’ve already won over. They won’t get there if they allow workers to once again be thrown to the wolves without fighting for them.

More often than not, Biden’s age and experience is treated as a liability from the same pundit class that doesn’t seem to understand why it’s beneficial for workers to have the leverage they do. But it seems likely that a battle royale between labor and capital is starting to hover into view. Here, Biden’s belief that employers should compete for workers and his affinity for labor organizers is an example where his old-school thinking truly is aligned with our present needs. Taking up this fight may not save the Democrats’ bacon in the midterms, but there is another election just around the corner where victory may be even more necessary. Biden should go to any length to win it; his vision of a labor market that works for ordinary people will put him on favorable terrain.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

*This article originally reported that The Intercept was the first to report on the memo.

In the last month, the Supreme Court’s conservative majority has unleashed a tidal wave of political power to secure a plethora of long-standing ideological goals, including leveling the administrative state, tearing down the barrier between church and state, and gutting reproductive freedoms that Americans have enjoyed for generations. With the right mounting up for ever more destruction in the not-too-distant future, it’s only natural that the people who have gotten screwed by all of the Supreme Court’s wheeler-dealings might seek out some equal or opposite societal energy that might be harnessed to push back in the other direction. One such force that’s recently emerged as a ray of hope is corporate America.

Those who look to Big Business for succor in these trying times might have been uplifted by The New York Times, which reported this week that the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision is “threatening to reshape the lines of economic competition between conservative and liberal states.” As Alexander Burns reports, the loss of reproductive freedom could cause a “disruption to the calculus” that has made some Republican-run states attractive to businesses—the idea being that as more onerous restrictions come online in various states, it will be harder for firms to attract talented potential hires to move to places where they’ll have fewer rights.

As the Times reports, some Democratic governors have acted upon this premise—North Carolina’s Roy Cooper, for instance, has vowed to veto any abortion ban on the grounds that it would hurt the state economically. Commerce Secretary Gina Raimondo has, in similar fashion, maintained that “the states imposing rigid abortion bans were all but certain to suffer economically.”

It’s understandable why people might look to corporate America to be a corrective force. A brain drain is certainly possible as young and talented workers avoid states with abortion restrictions or choose not to attend big state universities where top firms recruit. And there’s some logic in the idea that stability is good for business and upheaval is bad. We’ve even seen corporate America step forward to play a role in tempering such upheaval, when business leaders joined the campaign to get President Donald Trump to hew to the peaceful transfer of power. Perhaps the end of Roe’s protections are, in a sense, bad for business.

Since the Dobbs decision, we’ve been hit with a tidy barrage of stories about certain major firms, from Amazon to Citigroup, offering to help affected employees cover travel costs in order to get abortions out of state if necessary. It’s easy to talk a good game about these commitments in these early days, when nothing is certain but that the nerves of employees need to be calmed.

But even now, not every firm is speaking with encouraging words about reproductive rights: Facebook, Amazon, Twitter, and Snapchat have been guarded in their responses about whether they’ll hand over private data to police investigating recriminalized abortions. Some firms have already initiated crackdowns on their employees talking about their rights in both public and private fora.

I’ve expressed skepticism about corporations being a reliable ally of reproductive rights because sooner or later, all roads lead to corporations’ monomaniacal goal: increasing profits to shareholders. What’s going to happen when the cost of transporting the employees affected by abortion bans, and the possible legal expenses that accompany recriminalization, start cutting into bottom lines? I have some personal experience with this situation: In 2014, the company I worked for—AOL—attempted to rook its employees by reducing the generosity of our benefits packages on the grounds that two employees covered by our health insurance plans had “distressed babies” that imposed onerous expenses on the firm. AOL was certainly no model of corporate excellence. But if two employees’ medical bills can rattle a firm to that extent, imagine what happens when it’s hundreds of employees incurring new expenses.

If you’re feeling sinister, I suppose you might note the dark irony of how, in this narrow instance, two abortions would have been more cost-effective to AOL than two “distressed babies.” But that’s not the world we should be seeking to build. And frankly, neither is a world where some companies celebrate themselves for making less-than-ironclad commitments to workers about providing reproductive health care. As Today in Tabs’ Rusty Foster noted, while “eliminating the right to abortion unless you work for a certain employer” certainly “brings abortion in line with the rest of our national health care policy, where only the submissive employee has a right to any health care at all,” this is not the future for which we should be fighting.

As it stands, we might be kidding ourselves about this imagined future. Even if every rosy assumption becomes reality—liberal states outcompete Republican-run states for talent, workers relocate to reclaim lost rights, red states suffer economically—we should remember that if the national abortion ban conservatives are pushing for now comes to pass, none of that will matter. And as corporate America continues to fund the campaigns of anti-abortion politicians, you shouldn’t presume that they haven’t already thought of this.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

There was a sense in the days running up to the Independence Day holiday that something bad was brewing—that people just felt less safe. As Gothamist’s Matt Katz reported on July 2, New Yorkers were feeling apprehensive about being out in public because the prevalence of mass shootings in America was causing a similar prevalence of panic-inducing false reports of violence. As psychiatrist and sociologist Jonathan Metzl told Katz, it’s a problem that extends well beyond New York City: “I do feel like our entire country right now is traumatized by the fact that it feels like a mass shooting can happen anywhere at any time.” 

Clearly, those fears were well founded: As CBS News reported, there were 11 mass shootings over the weekend, including the Highland Park shooting that claimed seven lives. In the wake of another fresh round of mayhem, the usual social media admonitions to get out and vote in the midterms circulated urgently—some more ham-fisted than others. These were of course followed by an equally robust fusillade of calls to do more than simply vote. 

Obviously voting is an essential ingredient to political change. But a lot of politics happens between election days—something conservatives often seem to understand better than liberals. Still, for those hoping for high turnout, it’s worth asking: Will it actually be safe to go out and vote?  

We live in an age when being out in the public square increasingly seems like a frightening prospect; it no longer feels like there’s safety in numbers. And standing in a line to vote at publicly demarcated polling places very much requires us to venture into a space that now feels vulnerable—where we might find ourselves under attack.

As Georgetown professor Heidi Li Feldman explained on Twitter, “Anti-democracy institutions and people” propagate fear and vulnerability by making “more guns available to more people”—the single condition that accounts for America’s unique problem with gun violence. “By making it dangerous for people of diverse backgrounds to gather in public, gun mongers promote fear and suspicion of one another,” Feldman notes. “By making public space so vulnerable to deadly violence, those who promote and push guns strike at the civil fabric.” What gets lost as that fabric frays is a sense of a “civil society” that we can all share.

And what we gain is more fear. As Amy Spitalnick, the executive director of Integrity First for America, points out: Sowing fear is “why mass shooters [and] extremists directly target public events—from neo-Nazis attacking Charlottesville community members who were protesting, to attacks on Pride events and abortion protests, to the targeting of public officials. The violence is key to undercutting democracy.”

As the right continues to plot its path toward permanent minority rule, it is making political violence more mainstream, alongside the GOP’s massive voter-suppression project. It’s hard to deny how violence has become an essential ingredient of the plot to deconstruct democracy. Since the 2020 election and the disputes that arose from President Donald Trump’s Big Lie, election workers have quit in droves because of the constant violent threats they receive. Two Georgia election workers, Ruby Freeman and Shaye Moss, recently provided harrowing details to the January 6 commission about the ways their lives were “upended” by a nonstop firehose of “harassment and racist threats.”

Meanwhile, right-wing militias that once vowed to “protect the polls” have only increased their presence in our politics and our civic life, where they’re massing in the public square and taking orders on who to intimidate. After the most recent evidence surfaced by the January 6 commission, it’s no longer hard to imagine such thugs receiving instructions from on high to shut down Democrat-heavy polling places by any means necessary. 

Wasn’t the 2020 election supposed to be a rebuke of the culture of political violence Trump and his ilk famously promulgated? Apparently not: “Far from reducing violence, the 2020 election and its aftermath heralded a step-change in the mainstream acceptance of violence as a political tool,” writes Rachel Kleinfeld at Just Security. “Why would a faction of Republicans still in power or running for office at the federal, state, and local level make common cause with violent criminals? Because violence and intimidation are already bolstering their power.” 

What is to be done? Unfortunately, we remain stuck in the “vote harder” endless loop; we aren’t likely to pass a law protecting voters at the polls, for the same reason we’ve not enacted any voter protections in spite of these threats to democracy—not enough Democrats believe these measures are more important than preserving the filibuster. Democrats who feel otherwise must elect additional senators who are willing to change these rules. To get there, Democratic voters must feel safe enough to go to their polling places, and cross their fingers that their votes get counted.

This might be one occasion when less skittish Democrats should try their luck at passing a bill to make our polling places safe, force Republicans to take a hard vote, and then get them to explain why the ostensible party of law and order opposes ensuring safety and security at the polls. If that’s the only thing that can be accomplished in the short term, Democrats can at least distinguish themselves as the guardians of stability in the public square, thus advancing the Good Life agenda in a small but meaningful way. And if something unthinkable happens on Election Day—well … we will at least be able to name and shame the lawmakers who enabled it. 

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

As told by former White House aide Cassidy Hutchinson this week, on January 6, 2021, President Donald Trump went to a “Stop the Steal” rally, hoping to meet a crowd of armed and angry supporters whom he expected to personally lead to the U.S. Capitol; he lashed out when he was told that no, he could not join his mob in their collective mission. Hutchinson’s account sent shock waves through the media, and for good reason: Her testimony speaks to Trump’s intentions that day, a pattern of facts that’s often very necessary but very elusive in successful criminal prosecutions.

But while this may have gone a long way to helping some future criminal case get made, it’s also true that we didn’t actually learn anything new about the man who served as the president for four misbegotten years. No new facts are necessary to demonstrate that Trump was a sulky, smooth-brained baby, prone to fits of pouty anger, enabled by a coterie of vile liars and violent stooges. What’s far more interesting is how these revelations reflect upon the contemporary Republican Party. In Washington, as you know, the jury is still out on whether the GOP is redeemable. But based upon what you’ve learned during the January 6 commission’s work, would you say they seem like a party that holds comity, compromise, fellowship, or restraint as a civic virtue? Do they hew to any civic virtues at all?

It’s a question that answers itself; those Republicans who might cleave to a more reasoned form of political rhetoric are mostly doing so now from the safety of newsletters or the MSNBC greenroom; conservatives who once spoke of higher ideals, or even who want to govern, are retiring from their posts. The one avatar of this imagined “better” GOP, Liz Cheney—herself no peach—is being drummed out of the party. With all this in mind, we shouldn’t have much trouble drawing conclusions about the Republican Party’s plans in the days and weeks ahead.

Oddly enough, however, the Supreme Court’s recent overturning of Roe has given rise to a new round of insistences and assurances that the GOP writ large is not as bad as all that. Surely, they won’t pry other hard-won rights out of our hands. Why, they may even build a super-robust welfare state! I’m here to tell you that this is incorrect. Yes, a push for a national ban on abortion is coming. Yes, an attempt to roll back contraception rights and marriage equality will follow. Yes, Republicans will abolish the filibuster to complete their work if they need to. These next moves are fully embedded in the logic of the Dobbs decision, but more to the point, Republicans are simply saying these things out loud.

The conservative justices have, in their legal opinions in Dobbs, embedded vague assurances that they won’t be pushing for more than what they’ve already taken. Alito, for example, wrote, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” He doesn’t say anything about returning matters to the states, however. The court’s conservative majority, in any event, isn’t shy about stepping in and overruling state governments when they do something that they don’t like. As Carol Rose, the legal director of the ACLU noted, of Alito’s decision, “This is not an originalist document, it’s an ideological document” that invites Republicans at the federal level to forgo their supposed fealty to states’ rights in favor of a snatch-and-grab job.

As TNR’s Matt Ford points out, Brett Kavanaugh, in his concurrence, “emphasized that Dobbs did not threaten the court’s precedents on contraception, same-sex marriage, or similar issues.” He also said “that states could not … ban women from traveling to other states to obtain” abortions. Should you take the conservative justices at their word when they make such commitments? I invite you to recall that just this week, their decision in Kennedy v. Bremerton School District rested on an obvious lie. Besides all that, there is Clarence Thomas’s own concurring opinion to consider, which does in fact set the stage to undo the aforementioned precedents. While it’s being sold as an outlier among the court’s conservatives, the seemingly far-out opinions that Thomas expresses on one day have a funny way of becoming the majority opinion not long afterward, Matt notes.

Republicans, of course, hardly need the permission of the Supreme Court justices to carry out such aims. As The Washington Post’s Caroline Kitchener reported this week, anti-abortion activists and GOP lawmakers have begun developing their strategy for a national abortion ban. This is no surprise: As I noted in December, the Republican Party is a slave to purity tests. There is no moderating force to be found anywhere in its ranks; only a loud clamoring from its donors and leaders to push further. Lest you imagine there is a place for moderate Republicans, let’s recall the recent television ad put forth by Eric Greitens, the controversial Republican front-runner for Missouri’s Senate seat, in which he led a squad of armed men on a hunt to kill “RINOs,” or “Republicans in name only.” That’s how this party views moderate squishes now—as worthy of extinction.

It’s not clear that Democrats have woken up to what the GOP has become. The Biden administration still seems to think the Republican Party’s fever might break. On Wednesday, Biden reportedly reached a “deal” with Senator Mitch McConnell agreeing to support the nomination of an anti-abortion judge to the federal bench. (The timing is just exquisite.) Sizable majorities of normal Americans, however, both oppose the Supreme Court’s decision to gut Roe and are worried about what rights might be stripped next. No one should dissuade these people of their fears. It’s in moments like this that people, concerned about looming disasters, often get treated by media elites as alarmists—Chicken Littles squawking about doom in the sky. Have you read the news lately? The sky has fallen; the next disaster is on its way.

This week, when I saw The New York Times teasing a story on Twitter about a “coordinated, multiyear strategy” that Republicans were about to bring to fruition, my first thought was, “Sure, they’re about to overturn Roe v. Wade.” It took me a minute to remember that they actually had two such projects in the works and that the Times was referring to the culmination of a plan to “limit the federal government’s authority to reduce carbon dioxide from power plants.” That these plans are coming to fruition at the same time is all the more notable because their outcomes are not likely to be popular. The vast majority of Americans support abortion rights; few if any want to be shouldered with the burden of cleaning up the pollution to which a hamstrung Environmental Protection Agency cannot tend.

Thanks to the Supreme Court’s June docket, this is a boom time for coordinated multiyear strategies, so much so that you wonder: Do the Democrats have any of their own up their sleeve? Alas, for Democrats the flowers of such labors seem unlikely to bloom anytime soon. But what is sprouting from the roughly tilled soil of our politics is a clear distinction between the two parties’ theories of change. For the GOP, change comes after long periods of hard work, steady funding, and maintaining enthusiasm and momentum through periods of setback. For Democrats, change is reactive, coming only after the GOP’s ambitions have hurt just enough people to make Republican rule untenable. It’s clear that the first approach is proving more successful and more durable than the other.

Naturally, that the Republicans have managed to prevail on some long-term plans despite the relative unpopularity of their policies comes down to a few structural advantages. The ideological homogeneity of their electorate makes both messaging and expectations management much easier than what’s possible in the Democrats’ own frequently fractious tent. We’re also seeing the long-term investment made by the Christian right finally pay off. In decades past, institutional Republicans haven’t always seen eye to eye with the religious right, but together they have created a base that’s excited to vote in local and national elections. Over time, whatever cleavage may have existed has been sanded down, and now they’re building the future together.

The most important advantage the Republicans enjoy, of course, is that they’ve been far more adept at rigging the electoral system to their advantage through a by-any-means-necessary approach that helps them overcome the unpopularity of their policies. Democrats can, and often do, win more votes across the country in national elections, but the way their voters are concentrated in urban locales, combined with the GOP’s willingness to slice and dice districts through aggressive gerrymandering (with an assist from a friendly judiciary) means that Democrats have to run up the score and beat Republicans by wider margins to actually take control in Washington (and even in certain statehouses and state legislatures).

Despite all of that, Democrats do win elections, and occasionally wrest control of the government away from the GOP. But in recent cycles, to make that possible some truly terrible things had to happen to ordinary people first: The humiliating failure of the Iraq War and the depredations of the 2008 financial crisis facilitated Obama’s trifecta; Trump’s misshapen and scandalous first two years handed Democrats a wave midterm election in 2018; the Covid-19 pandemic created the conditions necessary for Biden to defeat the advantages Trump enjoyed as an incumbent president. The Democrats’ mantra may as well be: “We’ll always be there when the other guys screw up.”

There are worrying signs that Democrats have been conditioned to believe that the key to their success comes through periodic collapse—that there is a perverse comfort to be taken in the courting of imminent disaster. At the moment, Democrats’ hopes for the midterms lie in the potential galvanization of voters that might (or might not) follow the gutting of reproductive freedom. And across the country, Democrats are trying to help extremist candidates win GOP primaries in the hopes that those candidates will be less competitive in the general elections. Larry Summers believes that whipping inflation will require higher unemployment rates, and Democrats are listening. Even the strange reluctance among national Democrats to rise to the defense of the LGBTQ community, amid the daily genocidal rhetoric of Republicans, suggests that they’re counting on some amount of mayhem to inspire a normalcy-inducing backlash. It’s quite depressing to live in a political system where one party can only ascend to power on the backs of the victims the other party leaves behind.

Any solution must begin with a commitment to evening the asymmetries between the parties’ structure and strategies. Democrats need their own equivalent of the Federalist Society and their own plan to remake the judiciary and retrieve all the civil rights that are about to be stolen. They need to start staking out long-term transformative goals and define themselves in the same way the GOP has for generations, as a party with a wholesale commitment to a specific vision of the world. And they need to get their voters excited about casting their ballots at all levels of government—and then embrace a politics that works harder between election days.

But more immediately, Democrats should stop talking about the GOP they wish existed—a party that, in their imagining, up until recently was reasonable and only went astray when Trump came to power—and start talking in stark, unforgiving terms about the GOP that actually exists: a party that committed itself to the decades-long labor of fulfilling the very projects that now threaten to bring a new round of mayhem and harm. It’s nice that voters seem to turn to Democrats whenever there is a multitude of casualties, but Democrats need to break this cycle if they ever want to possess the durable power necessary to reverse the maladies that will soon be unleashed.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.