The Supreme Court’s Savage Indictment of the Republican Party

Our little experiment in multiracial democracy rarely leaves an encounter with the Supreme Court unscathed, but Monday’s 9–0 decision in Trump v. Anderson—in which the justices ruled that Colorado could not keep Donald Trump off the ballot—has left a deeper wound than most. As The New Republic’s Matt Ford explained soon after the unanimous, unsigned per curiam decision was handed down, the ruling is an absolute cock-up that willfully misinterpreted the plain text of the Fourteenth Amendment, seemed to misunderstand how either the Constitution or most elections in the United States work, took up questions that hadn’t been brought before the court in the first place, and found terrible ways to answer them.

The American people began the day armed with a constitutional fail-safe that provided them with the means of keeping an insurrectionist off the ballot. By noon, the court had ruled that they weren’t entitled to that tool, that it would be up to the voters themselves to decide whether an insurrectionist can hold higher office, and that their decision was subject to review and reversal in the form of a subsequent insurrection. Seems like a bad way to run a country.

As far as the legal matters in play are concerned, the ruling is, for the lack of a more polite descriptor, hot garbage—a sentiment, as Ford documented, shared by many people, including those who actually believed Trump should remain on the ballot. But outside of the jurisprudential hash left steaming on the courthouse steps, there is a rather savage truth sitting there, sub rosa, in the decision: It seems the Roberts court unanimously agrees that the Republican Party is truly, and despicably, lawless.

“How could the court butcher the ruling so badly?” asked Ford. “The simplest answer appears to be fear.” Fear was especially apparent in Justice Amy Coney Barrett’s admonition of the liberal trio’s fiery concurrence. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she wrote. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” It’s a bit rich coming from one of the justices whose rulings, most notably on the abortion rights front, have done a great deal to elevate that “national temperature,” and sow considerable chaos along the way.

But as New Republic contributor Jess Coleman quipped, “Things definitely tend to get messy when a political party unequivocally chooses an insurrectionist as its nominee.” It’s on this precise front that the court curiously avoided taking an obvious escape hatch: disputing that Trump had, in fact, aided an insurrection. Trump’s legal team provided that off-ramp, arguing that the former president was innocent of such treachery. Still, as Ford told me, most of the constitutional arguments that Trump’s lawyers advanced in his defense “only apply if, all other things being equal, he did participate in an insurrection.” That the Supreme Court chose to try to resolve the matter along constitutional lines suggests an admission: They believe Trump to have done the very thing that the Fourteenth Amendment forbids. From there, their mission became to backfill a rationale in support of the notion that Colorado’s remedy would cause too much pandemonium if it were to be administered.

But as they put themselves to this task, the court continued to quietly snitch out the GOP for their misrule. At one point, the court warns in its unsigned opinion of an “evolving electoral map” that could “dramatically change the behavior of voters, parties, and states across the country, in different ways and at different times,” potentially leading to the nullification of the people’s will. Here, Ford said, the court was “essentially caving to threats”—chief among them the ones raised in amicus briefs from a “coalition of Republican-led states” that darkly hinted at the possibility that “some states might exclude other presidential candidates from the ballot if Trump were disqualified.”

Naturally, it’s hard to see why anyone should fear a Republican secretary of state citing the Fourteenth Amendment in an effort to remove a Democratic candidate who had participated in an insurrection. I daresay that I am 100 percent in favor of such Democrats being barred from higher office. Here, however, the justices seem to be implying that the GOP will have reckless disregard for the law, and kick off candidates who cannot be said to have contributed to the sort of crimes that the Fourteenth Amendment inveighs against.

Indeed, we can foreclose the possibility of Democrats abusing their power in this fashion. For starters, at least one Republican secretary of state, Jay Ashcroft, had already issued such a threat, the cited reason simply being that he was upset that Colorado and Maine had moved to keep Trump off the ballot. Meanwhile, there is no such behavior among Democrats: Nikki Haley, a more fearsome opponent for President Joe Biden, was left on the ballot, untroubled by Democratic secretaries of state that might have wanted to help the Democratic candidate. (Also, it wasn’t Democrats who sent amicus briefs to the court written in the spirit of “Nice democracy you’ve got here, be a shame if anything happened to it.”)

It’s understandable that the Supreme Court would be worried about a Republican Party that doubles as a criminal cartel, because we’ve seen how, in the Trump era, they have descended into that lowly state, with one of their chief exports being the fomenting of political violence. This fact happened to be on the mind of Colorado Secretary of State Jenna Griswold as she wrestled with whether or not to invoke the Fourteenth Amendment in the first place: After the Supreme Court ruling was handed down, Griswold gave an interview on cable news where she lamented how the insurrection to which she was trying to respond hasn’t actually ended, as threats to her state election officials keep pouring in.

“We have had 38 percent of our county clerks step down since 2020,” Griswold said. “We can’t allow people who would use intimidation or threats to win that battle.” From the Supreme Court came the reply: If you don’t allow those people to win, the Republican Party might very well hurt you next.

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

On May 3, 2022, Maine Senator Susan Collins greeted news of the leaked draft of the Dobbs decision with her trademark rue: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meeting in my office.” When asked for more details, Collins demurred, offering only that her statement “speaks for itself.”

What Collins said may have been literally true, in that Neil Gorsuch and Brett Kavanaugh—like all Supreme Court nominees for decades now—didn’t explicitly show their hands on major, divisive legal questions during their hearings and congressional rounds. But it was also a breathtaking dodge by Collins, one that laid bare either her profound ignorance or her mendacity—and it’s worth recalling today because Collins and her ilk are once again being put on the spot over reproductive rights, this time with in vitro fertilization.

Justices Gorsuch and Kavanaugh, as everyone in Washington (including, surely, Collins) knew at the time of their respective nominations, were practically lab-grown to ascend to the Supreme Court to overturn Roe. That’s precisely why their names were provided to President Donald Trump by the conservative legal movement. Beyond that, Kavanaugh actually did make clear his intentions toward Roe—at least, to legal minds who were paying attention. He told Senator Ted Cruz that when it comes to rights that are unenumerated in the Constitution but considered implicit in the text, “all roads lead to the Glucksberg test.” He was referring to Washington v. Glucksberg, in which Chief Justice William Rehnquist held that such unenumerated rights need to be “deeply rooted in this Nation’s history and tradition” to be considered valid.

In Glucksberg, the specific right being challenged was the right to a physician-assisted suicide. The abortion rights wrought by Roe fall into the same category. So while Kavanaugh may have been speaking in judicial code, it wasn’t that hard to penetrate. “It doesn’t take the brains of a fourth-term United States senator from Maine to figure out what this means if Kavanaugh is confirmed,” ThinkProgress’s Ian Millhiser explained at the time. “Judge Kavanaugh will be the fifth vote to kill Roe if he joins the nation’s highest Court.” As Millhiser predicted, the “Glucksberg test” was applied in precisely this fashion in the Dobbs decision.

Why rehash this history? Mainly because Collins’s prevarication two years ago is how Republicans are going to try to run the post-Dobbs gauntlet in this election year, in an attempt to evade responsibility for the terrors they have unleashed and those they have planned for the future. They will lie, and they will play dumb.

The contours of this strategy blew into wide view after the Alabama Supreme Court ruled that frozen embryos are people, throwing the future of in vitro fertilization, or IVF, in the Yellowhammer State and beyond, into doubt. Republicans in Congress rushed out statements in support of IVF, but as The New Republic’s Ellie Quinlan Houghtaling documented, their sudden interest in preserving IVF was dramatically at odds with their support for the Life at Conception Act, which “hoped to recognize fertilized eggs as children at the federal level in an attempt to ban abortions nationwide”—a measure co-sponsored by 163 Republicans in the House.

Indeed, the Alabama ruling was nothing more than a plain reading of similar laws in state law and its constitution, which enshrines fetal personhood in a similar matter. All of these various laws and legislation are the product of the same 50-year project that took down Roe, and which is straightforwardly geared toward a nationwide abortion ban.

But the contretemps raised by the ruling has amplified a schism between Republican elites who hope to choreograph a piecemeal rollback of these and other rights, and far-right firebrands outside of Washington who want to bring about this future as instantaneously as possible. As I’ve written before, this tension has led some institutional Republicans to try to “rebrand” the pro-life movement as moderate—rather than hell-bent on banning all abortions.

This “rebranding” will, in this campaign year, essentially amount to dodging and weaving. You’re going to see various GOP elites proclaiming support for exceptions and limits, but there won’t be a valid commitment to advancing any such protections. Indeed, South Carolina Republican Nancy Mace spent the week shopping for co-sponsors for a resolution that purports to support IVF, but which, as Business Insider reporter Brian Metzger notes, “doesn’t actually do anything.”* (My colleague Adrienne Varkiani greeted this news like so: “A resolution that does nothing is peak Nancy Mace.”)

But what happens in Washington matters less than what happens in the states, where, The New Republic’s Greg Sargent says, “the true implications of GOP positions on reproductive rights will be harder to evade.” After all, it’s the states where the radicals hold levers of power, and their attempts to reassure voters that they’re not actually radical is proving even more ham-handed than Beltway Republicans’: This week, Alabama Republicans put forward a bill purportedly protecting IVF, which automatically repeals itself in 2025. In other words, it secures these rights only until the election is over, after which state lawmakers can get back down to the job of taking them away again.

This election year, Republicans will lie endlessly about their abortion positions. That much is certain. The question is whether political reporters will launder Republicans’ extreme positions by accepting at face value the benign, moderate things they say about reproductive freedoms—without adding the all-important context that the GOP is part of a half-century movement dedicated to a wholesale rollback of all abortion rights. That’s how you get an Associated Press story characterizing Donald Trump as some sort of champion for IVF when, given his Supreme Court picks, he’s played the biggest role of any politician in advancing the notion that frozen embryos are people. These GOP lies should be easy to decipher and expose, but as Susan Collins knows, they tend to work like a charm.

* This article originally misidentified Mace’s state.

On a debate stage in 2019, former Department of Housing and Urban Development Secretary Julián Castro went there: suggesting that fellow presidential contender Joe Biden, who was 76 years old at the time, suffered from memory issues. “Are you forgetting what you said two minutes ago?” Castro needled. “Are you forgetting already what you said just two minutes ago?” Democratic elites were quick to swoop, lambasting Castro for his incivility. “That was a disqualifier, the way he handled it,” Rahm Emanuel said in the ABC spin room shortly afterward.

During that election cycle, Democrats seemed bent on eating their young; all but Pete Buttigieg were ground up in the gears even as the party changed its debate rules to allow Republican dowager Michael Bloomberg to briefly live out his youthful fantasy of running for president. By party acclimation, the septuagenarian Biden was anointed champion after the South Carolina primary. All thoughts of his age were set aside—until this year, when those same party elites were blindsided by the fact that time only moves forward. Biden had in fact gotten quite old. Then they were rocked anew by the Hur Report, which made Castro look prescient.

So now, the hot new thing in the imaginations of the political commentariat is replacing Biden atop the ticket. I’ve long taken a dim view of this prospect, but I want to leave my feelings aside to provide proponents of this idea with something that was sorely lacking during the 2020 primary: foresight. If you’re contemplating moving on from Biden, here’s what you need to know: It will be a brutal road to Election Day, marked by gallons of intraparty bad blood and media coverage so unfavorable to Democratic interests that it will blow your mind.

This fundamental truth is getting glossed over by the likes of Ezra Klein, whose recent audio manifesto in The New York Times promises that Democrats “have a better option than Biden.” It takes several thousand words of throat-clearing, but eventually Klein’s “better option” does kind of hove into view: Kamala Harris, probably, and if not her, then a warm body can be plucked from the “ton of talent in the Democratic Party right now.” And this would all get sorted out at the Democratic National Convention in August. “Could it go badly?” asks Klein. “Sure. But that doesn’t mean it will go badly. It could make the Democrats into the most exciting political show on earth.”

Setting aside the fact that the party’s current streak of passivity bodes poorly for this promise of certain electoral Barbenheimer, what Klein is talking about is a brokered convention. This idea gets raised every election cycle, usually by some desperate crank clinging to the hope that the inevitable might be forestalled, but it’s an especially strange prescription for 2024. Democrats are said to be fighting to save democracy, so kicking voters to the curb in favor of allowing a few thousand party delegates to decide the nominee is an odd look. This plan would also leave a lot of vital work to the last minute, as there would be no Democratic presidential candidate until the third week in August. From there, the Chosen One will have to spin up an entire campaign on the fly, playing logistical catch-up with a Trump team that will have had many months’ head start and which will no longer have to go up against the one politician to have ever bested him.

But I’m getting ahead of myself. Before we even arrive at that daunting task, we will have to endure several months of pre-convention party infighting as every Democrat with presidential aspirations realizes that if they fail to win the brokered convention sweepstakes and the party nominee wins in November, their Oval Office dreams will get deferred until 2032. Here, we will see the same intense rivalries of an open primary, but instead of playing out on debate stages and cleansed in the sanitizing fire of “the people deciding,” all of this internecine strife and backstabbing will take place in the media and culminate in what will likely be a chaotic convention floor fight broadcast live to the nation on prime-time television.

Naturally, one out-of-the-box solution to this problem is for Democrats to somehow coalesce around the idea of Kamala Harris as successor. Getting there would require the biggest and most influential names in Democratic Party politics to first agree to this and then mount a blitzkrieg of arm-twisting and dealmaking to bring everyone on board. This would be no mean feat, especially considering the fact that Harris has been perpetually dogged by the criticism of anonymous Democratic insiders for as long as I can recall.

Beyond the slings and arrows of outraged presidential aspirants, Biden’s removal will also open deep factional wounds within the party that the Biden presidency successfully cauterized. To his credit, Klein is aware that the president played a role in bringing about this détente. But a more detailed examination of this effort, documented in the newly released book The Truce: Progressives, Centrists, and the Future of the Democratic Party by Hunter Walker and Luppe Luppen, calls into question whether that unity can survive his absence, since so much of it was wrought on the strength of Biden’s preternatural ability to engender trust and forge surprising alliances, especially with progressives. Biden’s removal from the ticket will almost certainly sunder this truce and restart a bloody battle for the future of the party.

There is one final thing to dread in this scenario: With bickering personalities and factional bloodshed taking center stage, kicking Biden off the ticket will lock the party into an epic “Democrats in disarray” newscycle that will last until election night. I’m sorry to say this makes a certain amount of sense: Removing Biden at this point is, at bottom, a desperate act from a party that’s losing the election. For the media it’s chum in the water. And as I’ve said before, you should not count on proponents of Biden’s banishment to ratify the decision as sane or sensible after the fact, let alone provide positive coverage in return for having changed horses in midstream.

Moreover, the brokered convention scenario sets the table for a smorgasbord for the political press. Plates will brim with all of their favorite delicacies: chaos, conflict, and controversy. There will be much on the menu. You’ll have anonymous dissenters shivving Democratic decision makers in the pages of Politico; grass-is-greener bedwetters bemoaning the fact that their preferred candidate didn’t get picked; Twitter discord from all quarters mined for clicks; and the inevitable rise of a “We miss Joe Biden” faction to cluck-cluck at those who made the fateful choice. And all of this content will get stuffed into a news hole at the expense of any or all the messaging that Democrats might want to stick there.

It’s definitely possible to imagine that some candidate, free from the gerontological concerns that dog Biden, might have an advantage against Trump. This is what Julián Castro was warning about four years ago, after all. But if the party makes a switch now, the road ahead will have many points of pain and many opportunities to wear that precious advantage down. It could end up being a wash in the end, or worse. It’s definitely not going to be as easy as many proponents of this plan are willing to admit right now. But if Democrats choose to make this leap, they should make sure they do what they failed to do in 2020: peer over the edge of the cliff from which they’re about to hurl themselves, and steel themselves for the long descent.

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

What do Democrats need to do to win in November? The New Republic took up that question this month in a series in which some of the brightest minds offered their best advice to President Biden and his party. But in an essay mapping out the challenges Democrats face, and how to surmount them, editor Michael Tomasky wrote something that has remained lodged in my mind: “It practically goes without saying that the Democrats will do none of the things I suggest.”

I’m pretty sure that Michael didn’t intend that one line to linger the longest. But it’s borne out so far. Here at the precipice of the general election, Biden has important accomplishments to trumpet and significant errors to overcome. But he’s being served poorly by his party, which seems adrift, complacent, and inert. Republicans, by contrast, have been sharper and more savage; at the moment, they are winning.

The recent fallout from the report by special counsel Robert Hur—the Trump-appointed U.S. attorney whom Attorney General Merrick Garland tapped to investigate Biden’s potential mishandling of classified documents—neatly illustrates the differences between the two parties. While absolving Biden of criminal wrongdoing, the report characterized the president at length as someone with worrisome memory lapses.

I don’t know if Hur went about his job with partisan ends in mind, but partisan ends were served nonetheless: The report surfaced derogatory information in a way guaranteed to make news. From there, an exceedingly well-oiled GOP communications machine swung into operation. Democrats have largely responded by complaining about how the media has framed the story. Their complaints may have merits, but what matters is they’re losing.

As The New Republic’s Osita Nwanevu noted, it was a “collision of Democratic pathologies” that put Hur “in the position to shiv Biden” in the first place: “Gerontocratic politics, a culture of hero-worship that gave Garland far more respect and stature than he was ever due, and the commitment to even-handedness” led Garland to believe that the fair thing to do was put a Trump-appointed attorney in charge of the investigation. But the biggest pathology on display here has to do with the way Democrats approach the media and their extreme disinterest in competing on the same playing field as the GOP.

There are always good reasons to complain about the political press—and Republicans do their own share of carping. But Democrats too often operate as if the media they’d prefer to have—temperate and fair, dedicated to substance and nuance, committed to preserving democracy—is the one that actually exists. Republicans don’t believe that the press is a noble institution and they don’t treat its members that way. Instead, they innately understand that the political press is just a ravenous, insensate maw looking for its next hot meal of crassness, chaos, conflict, and controversy—and Republicans always come with a heaping plate.

Once the Hur report became national news, GOP electeds acted quickly and decisively to keep this new shiny ball spinning. As Brian Beutler reported in a recent newsletter, the full-court press is on: “Hur is now negotiating with his fellow Republicans on Capitol Hill over what he can testify to and when he can appear at a hearing. Those same Republicans have insisted that the Justice Department release a transcript of Biden’s interview with Hur, so they can clip and circulate any instance in which Biden’s memory failed him.” Once the GOP gets a scent of some derogatory information, they are prepared to act on it.

The Democrats compare unfavorably to their opponents’ fervent determination and preparedness. In a previous edition of this newsletter, I noted that Representative Jamie Raskin had surfaced evidence that Trump had “pocketed at least $7.8 million in payments from foreign governments during his presidency,” but that the investigation hit an impasse when the GOP took over the House. Democratic senators have a committee where they can pursue open-ended investigations, but they have no interest in advancing Raskin’s case.

And the Hur report, while mainly damaging to Biden, also happens to cast Trump in an unfavorable light regarding his own handling of classified materials. Democrats don’t seem interested in using their own investigatory powers to raise further questions or make a big stink about the matter. Beutler ruefully noted that the media didn’t “swarm to the unflattering contrast between Trump and Biden” because Democrats largely ignored it.

This is malpractice, especially when you consider how swiftly and purposefully the GOP acts on similar shreds of information. But Democrats’ aversion to playing the game in the most effective manner is bone deep. They’re ignoring a myriad of other areas where further unflattering facts can be found. What might be behind Trump’s plan to abandon NATO? What shady arrangement may lurk at the heart of the favorable treatment he’s receiving from his pet judge Aileen Cannon? Democrats don’t seem to want to fill the newshole with these discussions.

Nor do they seem to want to make daily hay of Trump’s many legal woes. They aren’t pouncing on the fact that he recently confused Nikki Haley with Nancy Pelosi. The former president has vowed to repeal and replace Obamacare. Why aren’t Democrats beating him up over that? Republicans’ similar plans to end protections for patients with preexisting conditions were a potent campaign issue for Democrats in 2018. Have they forgotten?

What do the Democrats stand for? Who are their enemies? What fights do they want to pick? Can they even answer these questions? Because while they dither, the public is forming some wild opinions about what should go in the spaces they’re leaving blank. Recent polls indicate that half of Americans think that Biden got favorable treatment from Hur in the document probe. Another recent poll indicates the public blames Biden for killing the border deal, despite the fact that Trump publicly browbeat GOP electeds into nuking it. After the expiration of the expanded child tax credit, voters who had received those benefits swung their support to the GOP, despite the fact that they were the most prominent opponents of the expansion. And majorities of voters still don’t hold Trump responsible for the repeal of Roe’s abortion protections.

Perhaps the press should be doing a better job conveying this information. I certainly harbor little affection for mainstream political reporting; there are definitely patterns of behavior among the elite media that rebound to the detriment of Democrats alone. But at a certain point Democrats simply need to shoulder the responsibility themselves instead of waiting for the media to cure itself of habits that have been entrenched for decades.

Instead, they are getting in their own way, mired in weird pathologies and maladroit tendencies, timidly waiting for nonexistent referees to come and level the playing field on their behalf. There’s no getting around the fact that Joe Biden is old and steadily getting older. It’s up to other Democrats to lend his campaign youth and vigor; instead they are supine and moribund. Watching this party execute its campaign plan—if you can call it that—you’d never suspect that it feels any urgency. But there is much at stake, and Democrats are absolutely blowing it.

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

The first few weeks of this young year have only resurfaced an old problem: the continuing economic havoc that’s roiling the journalism industry. Hundreds of positions have been cut at venerable institutions like the Los Angeles Times and The Wall Street Journal. Start-up concern The Messenger eliminated itself from existence, leaving behind scorched earth and recriminations. This week, TNR’s Ellie Quinlan Houghtaling dove into this rot and found much of it coming from the top, with a plutocratic ownership class that’s driving good businesses into the ground on the backs of poor choices and bad ideas.

Just about everyone in this business has had some brush with the employment grim reaper—or is glancing over their shoulders in fear of the next encounter. But every once in a while, we catch sight of the ways that journalism, with a little bit of stability and good decisions from the top, can still make a huge difference in the lives of ordinary people. And this week, we can celebrate one such example in the state of New York, where some good old shoe-leather reporting has helped lawmakers craft a new bill to crack down on one of the most costly financial crimes we face: organized corporate wage theft.

Back in September, I highlighted a blockbuster report from ProPublica, who, working in a partnership with Documented New York, dug through federal and state databases and uncovered a staggering degree of wage theft: From 2017 to 2021, “more than $203 million in wages had been stolen from about 127,000 workers in New York.” While it is an inexact science to compare one state to another in this regard, ProPublica reported that its “analysis of cases reported to the U.S. Department of Labor and substantiated by federal investigators shows that New York ranked eighth highest in the amount of back wages owed per worker.”

But the best thing about all that reporting is that it’s been put to very good use. As ProPublica reported this week, New York state lawmakers have proposed a battery of bills that will bring the hammer down on wage thieves by allowing state agencies to strip scofflaws of their ability to do business.

One bill, centered on the restaurant industry—where workers in New York had $52 million stolen from them between 2017 and 20201—would allow the “New York State Liquor Authority to suspend liquor licenses for bars and restaurants that the Department of Labor has determined owe more than $1,000 in back wages to their workers.” The second bill “would enable the Department of Labor to place a stop-work order on any business that has a wage theft claim of at least $1,000”; this has been an effective punishment in other cases. Finally, the third bill “allows the New York State Department of Taxation and Finance to suspend a business’s certificate of authority—which allows it to collect sales tax and conduct business—in cases where wage theft exceeds $1,000.”

Anyone who runs afoul of these new laws can get themselves off the hook using one neat trick: Pay up within 15 days! Otherwise, it’s a pretty severe punishment. But it’s one that fits a truly heinous crime, and if the past is any guide, wage thieves have prospered because of the way the law too often doles out mere slaps on the wrist.

A Popular Information report from January explains that this has been what’s missing: While the Department of Labor can penalize wage thieves, it is only empowered to impose civil penalties against repeat offenders or when it finds that the wage theft was “willful.” Consequently, penalties are only “imposed 41 percent of the time.” And when they are imposed, they’re rarely stiff enough to trouble large firms: “The maximum civil penalty is $2,374 for each violation. In contrast, in Australia, the penalty for wage theft is up to $630,000 per violation.” That these new laws have actual teeth is a big improvement.

Back when I first wrote about the scourge of wage theft, I focused on the way the media industry was dropping the ball by elevating shoplifting and organized retail theft to national panic status. This feeding frenzy over penny-ante crime—one estimate put the real cost of the shoplifting wave at “seven cents per 100 dollars in losses”—was often promulgated through too-good-to-check stories that fell apart under the slightest scrutiny. Wage theft, by contrast, is a massive crime: A 2014 study from the Economic Policy Institute found that wage theft “costs American workers as much as $50 billion a year.” It deserves massive attention.

In terms of how the media has treated both issues, this is a Goofus and Gallant–style comparison. All the shoplifting coverage in the world has produced little more than bogus stories and reactionary fearmongering over crime. ProPublica demonstrated how better journalistic choices lead to an informed public and impact in the form of laws that will help solve a truly rampant problem and actually help ordinary people.

It also earned a ringing endorsement from state Senator Jessica Ramos, a co-sponsor of the aforementioned bills: “We knew from our conversations with labor and from our constituent service caseload that wage theft is a chronic problem,” she said. “We did not have the data to understand the scale of the issue in New York state until the ProPublica and Documented series came out last year.” It goes to show that journalism still works when it’s uncoupled from idiot bosses.

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

Just about three years ago, Time’s Molly Ball dropped an epic piece of reportage on the wild months from Joe Biden’s presidential victory through the terrifying events of January 6, 2021. During this fraught time, an unusual champion emerged in the fight to protect democracy: corporate America. As Ball documented, “the forces of capital” teamed up with “the forces of labor” to rebuff the loser who refused to admit he had lost, with “hundreds of major business leaders, many of whom had backed Trump’s candidacy and supported his policies, [calling] on him to concede.”

It’s hard to know where we’d be today if this unity campaign hadn’t emerged. Sadly, I have grave doubts that Big Business is going to re-up for another campaign to save America, as some CEOs are already making clear that they don’t find Trump so dangerous after all.

Longtime readers will recall that I take a pretty jaundiced view of the idea that corporate America has a vital role to play as a stabilizing force in our democracy. But I’m happy to acknowledge that the most recent vintage of right-wing rhetoric sometimes makes it seem like Republicans and corporate America are headed for some kind of split. Not long after Ball’s reporting, The Wall Street Journal’s Editorial Board published a lengthy screed about the “left turn of many corporate CEOs” and their failure to remain “a reliable friend of capitalism”—just one of the larger rounds expended in the right’s war on “woke corporations.”

TNR’s Osita Nwanevu wasn’t buying it. “It’s preposterous to characterize them as material enemies of the right given that they clearly want to funnel money and resources to Republican lawmakers any way they can without raising hackles from vigilant activists,” he wrote. “They owe their market power and low tax burdens to conservative policies, after all, and for all the right’s moaning and groaning about ‘woke capital,’ Republican rule is still a better deal for them than Democratic governance.”

Faced with the prospect of another four years of Democratic governance—especially under the auspices of a president who has showered more favor on the labor movement than any of his recent Democratic predecessors—corporate America seems to be returning to its old malodorous form. The most telling sign came, naturally, at Davos, where J.P. Morgan Chase head Jamie Dimon began the process of making peace with Trump’s return: “Take a step back. [Trump] was kind of right about NATO, kind of right on immigration. He grew the economy quite well. Tax reform worked. He was right about some of China. He wasn’t wrong about some of these critical issues.”

As Brian Beutler pointed out in his Off Message newsletter, this was worthy of alarm bells: “The question of whether elites, particularly center-right elites, choose to abide fascism is central to the survival of democracy.” In a later post, Beutler dove deeper into Dimon’s rhetoric, and found evidence that whatever ties that might have bound him to the more high-flown ideals of our democracy were fraying:

I’d bet a large sum of money that Dimon knows Donald Trump tried to overturn the 2020 election. I’d bet almost as much that Dimon knows Trump has promised to establish a dictatorship on “day one”; that he has demanded immunity for any crimes he committed from 2017-2020, and any that he might commit from 2025 onward.... And yet to hasten another round of tax cuts and reduced bank regulation, Dimon will tell the world he thinks Trump is a populist everyman who gets a bad rap.

There’s no way to know for sure whether the political media will successfully discern the con of Dimon plumping Trump as a “populist everyman,” especially given the fact that over the course of the Trump era, they have continually conflated “populism” with “boorishness.” Still, this isn’t the worst development from the perspective of those who are running Democratic campaigns this year—it would be ideal to raise the salience of a Wall Street embrace of Trump, especially considering Biden’s vastly superior record on labor. As TNR contributor KJ Boyle documented at length, life for the average worker got vastly worse during Trump’s reign.

Biden’s vital corrections to that grim era may, in fact, be the very reason that Dimon is looking to the orchestrator of the attacks on the U.S. Capitol for relief. It wouldn’t be the first time such an alliance was attempted: Back in 1933, a cabal of financiers attempted to orchestrate what came to be known as “the Business Plot,” a plan to overthrow President Roosevelt’s government via an ersatz uprising of aggrieved veterans. They made the mistake of asking retired Marine Corps Major General Smedley Butler, the famously repentant author of War Is a Racket to lead it, only to learn the hard way what a blunder it was to ask a man of great integrity to lead a campaign against democracy when he instead sold the coup plotters out. Suffice it to say, Donald Trump does not offer similar impediments.

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

It appears that we’re all going to pretend to have a GOP primary a little longer. Eight days after his decisive win in the Iowa caucus winnowed the field to two, Donald Trump comfortably beat Nikki Haley in the New Hampshire primary. The former South Carolina governor is soldiering on, apparently on the grounds that hers was but a minor shellacking and not a campaign-killing blowout. But the end will arrive soon enough—perhaps in her home state next month.

With Trump all but officially the nominee, though, Republican politicians are now turning to the question of how he can win over non-MAGA voters—and there is a scent of uneasiness in the air. In something of a plot twist, GOP lawmakers have grown discontented with the way their party’s rickety platform offers few selling points for the party, with some members “very publicly complaining about [its] lack of accomplishments,” according to reports. 

NBC News’s Sahil Kapur reported that there is a “dynamic that looms over Republican lawmakers,” in which they’ve “passed little substantive legislation since winning the majority” and are struggling with “the basics of governing” and beset by internal “fractiousness and chaos”—all of which is apparently complicated by the fact that Trump’s policy platform is mainly about “retribution” and spreading “fabricated claims that the 2020 election was stolen from him.”

Last November, we got our first inkling of this strange insecurity when Texas Representative Chip Roy went to the floor of the House to have a nervous breakdown about the deficiencies he saw in his own party. “One thing. I want my Republican colleagues to give me one thing. One. That I can go campaign on and say we did,” Roy ranted. “One!” (Apparently taking credit for the infrastructure bill that most of them voted against doesn’t quite cut it.)

This is a lot like a Girl Scout expressing outrage over the organization’s commitment to cookies. Nearly all of Roy’s disgruntlement can be chalked up to the simple fact that he’s a member of the Republican Party, which hasn’t really been  trying to accomplish anything  for a long while. Three years ago, TNR contributor Katelyn Burns took stock of the GOP and found that it had all but abandoned meaningful policymaking in favor of “entrenching itself in the distant patriarchal mythology of America’s past” and waging culture war against liberals. A Republican adviser to former Senator Rob Portman summed it up: “If you want to spend all your time going on Fox and be[ing] an asshole, there’s never been a better time to serve. But if you want to spend all your time being thoughtful and getting shit done, there’s never been a worse time to serve.”

It is deeply funny that Roy has emerged as one of his party’s foremost critics in this regard. In a profile last year, TNR’s Pablo Manríquez described Roy as a “viral bomb thrower” with scant history of bipartisan accomplishment and a tireless critic of the debt ceiling and funding deals that House Speaker Kevin McCarthy had to make to keep things running. While Roy came out against the motion to vacate that began the process of ousting McCarthy, his replacement pick, Jim Jordan, was even less suited to accomplishing anything—unless his quixotic efforts to invent some sort of reality-based foundation for the party’s incessant culture warring counts as a “thing.” 

In his public remarks, Roy seems to understand that the primary impediment to Republican accomplishments is the fact that Democrats control the Senate and Joe Biden occupies the White House, and that getting things done requires Republicans to engage Democrats and forge deals. From what I can discern from his rantings, though, he has no real plans to do this, preferring instead to shout loudly and indiscriminately at the situation while assailing other members of his party for their lack of magical thinking. 

This is where Roy stands out, even among his caucus: He seems to hate some of his Republican peers at least as much as Democrats. At one point during a recent floor speech, Roy professed outrage over the fact that passing a border deal might require Republicans to have to talk to Senator Mitt Romney and other Republican senators to convince them to support the effort. “So what?” he declaimed about his House colleagues’ plans to pass a border security bill out of the House. “Are you going to pass that bill and walk over [to the Senate] and convince that great stalwart of defense of our border, Mitt Romney, that he should vote for it? Are you going to convince any of the 12 who just voted to redefine marriage and stomp all over religious liberty … are you going to convince any one of them to vote for a strong border security bill?”

It’s notable that Romney features here, as Romney is perhaps the last prominent Republican to rise up through the ranks on the back of a famous policy accomplishment. But over the years, the Commonwealth Care health care reform he enacted in Massachusetts has gone from being an acclaimed example of GOP problem-solving to forbidden knowledge of which none must ever speak. 

Romney’s stock within the party has declined in direct proportion to his party’s commitments to policymaking. It’s been an ignominious trajectory—but more so for the country than the GOP. Because for all of Chip Roy’s carping, it’s a simple fact that the modern GOP doesn’t actually need policy accomplishments to win elections. This is a party built to thrive on gerrymandered districts, Senate malapportionment, Electoral College shenanigans, and other well-funded game-rigging and voter-suppression efforts—the better to survive the unpopularity that comes from not ever contributing to the civic fabric or the betterment of the country. 

But Chip Roy should take heart, because Trump’s presumptive nomination suggests that Republicans will have specific things to run on in 2024: another round of tax cuts for rich corporations to fund more stock buybacks, a fresh attack on Obamacare and its protections for patients with preexisting conditions, and, of course, the furtherance of abortion restrictions as dictated by the party’s most sociopathic extremists. I would definitely encourage Republicans to be true to themselves, and run on a promise to accomplish these things.

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

It’s possible that the 2024 presidential primary will go down as the shortest in American history. This week’s blink-and-you’ll-miss-it Iowa caucus wrapped up about 34 minutes after polls closed, with Donald Trump the winner by a predictably wide margin. The GOP nomination contest will stumble forward, reeking of anticlimax, but with Trump comfortably dominating the GOP field and the Democratic nominee locked and loaded, the competitive portion of the primary is over (if it ever started). Nothing remains but playing out the string.

So what now? While you shouldn’t underestimate the political media’s desperate need to gin up suspense where none exists, at some point soon it’s going to become impossible to conjure the illusion that it’s still a contest. There will be a huge space in the news hole to fill, and Democrats ought to have an unrelenting plan for filling it.

The New Republic’s editor, Michael Tomasky, in setting the table for this campaign season, has repeatedly stressed the need to name some enemies and pick some broad public fights with these foes. Now, as the media fiends for drama amid a lifeless campaign season, is a ripe opportunity for some good old-fashioned naming and shaming. This can’t be the stuff of wonks and white papers—this is about emotions and morality, a gut punch to the bad guys.

President Joe Biden opened this particular book by going long on the threat that Trump poses to democracy. There’s nothing wrong with restating these terms, especially as it was a winning message in the midterms two years ago. But not every voter that Biden needs to reach is going to be fully convinced that such an existential threat is in the offing. So it pays to locate some less esoteric enemies, to whom everyone can relate. Here, a slew of corporate enemies abound: junk-fee crooks; private equity goons; the gangsters of the pharmaceutical industry; banks plucking high overdraft fees out of the pockets of people living paycheck to paycheck; a small universe of price gougers, wage thieves, and consumer predators.

Democrats should be using their bully pulpit to actually bully these miscreants, drawing down on anyone who’s preventing ordinary Americans from claiming their fair share of a robust economy. Another way you can save democracy, after all, is to give people the belief that they can use it to empower people who’ll fight for them. But Democrats have to earn these stripes through political combat—and they need to force Republicans to pick a side, as well. More often than not, the GOP can be put on the defensive. Trump’s plan to team up with the privateers of the health care industry to dismantle protections for patients with preexisting conditions is already giving his fellow Republicans headaches.

That brings us to the other commodity with which Democrats need to fill the space left by the absent primary: derogatory information about Republicans. This is one area where Democrats simply don’t seem to be on the same page. As The New Republic’s Greg Sargent reported this week, Representative Jamie Raskin and his colleagues on the House Oversight Committee have done yeoman’s work, surfacing a tremendous amount of documentation proving that President Trump “pocketed at least $7.8 million in payments from foreign governments during his presidency” and that the cataloging of “far more such foreign booty” was “thwarted when GOP capture of the House deprived them of subpoena power.” The path to furthering this investigation is blocked in the House, but Raskin has, in recent days, “approached Senate Democrats and made the case that they might consider using their subpoena power to continue the investigation into the unconstitutional payments.”

The problem, Sargent says, is that Raskin is hitting a roadblock in the Senate, which is divided on whether to take the next step and jump into the fray—especially given that “to refer any ignored subpoenas for prosecution, the Senate must marshal 60 floor votes to overcome the inevitable GOP filibuster.” But the point of this exercise shouldn’t be to levy a bunch of criminal convictions—it’s to surface newsworthy information that the media might mill into content. The Senate may prefer to be the “cooling saucer” of democracy, but to provide for democracy’s future, it’s going to have to spill some tea.

The fact that the Democrats are of two minds on the matter is emblematic of the asymmetry of America’s political warfare. Republicans can be counted on to speak with one voice, picking topics on a daily basis on which to do a Two Minutes Hate, keeping the right-wing media Wurlitzer filled with fresh sheet music to call the next dance. Democrats can’t match the GOP in terms of propaganda infrastructure, but they can marshal far more relevant and substantive topics of conflict than the Republican Party’s typical culture-war fare. As Brian Beutler noted in his Off Message newsletter, Raskin did successfully break into the media transom—and if Democrats could learn to parcel such damning information in small portions, that slow drip could keep the media fed for days on end.

Again, the point of these conflicts isn’t necessarily to get “wins” in the form of defeated enemies or laws passed in the short term, it’s to take back some measure of control over what we spend the next few months talking about, put Republicans on the back foot, and constantly remind Americans that Democrats are on their team and will crush the people who are cheating them out of the good life they deserve.

And for a reelection campaign that’s been dogged by constant critiques of Biden’s advanced age, Democrats need a shot of vitality, which some good old political knuckle-dusting can bring. They can be an energetic, capacious party, filling this liminal space until the general election with fighting words and a promise to crush crooks. The 2024 campaign is looking more and more like it might be a referendum on whether the Democrats can put up a fight or not. I’d strongly advise them to get in the ring.

The media spent a large part of Donald Trump’s presidency waiting for the moment that he might become presidential. Like fools, they manned this post in spite of the fact that Trump had very specifically refused to comport with one of the central notions of the constitutional order: that there are reasonable limits on presidential power. Trump was hardly the first to abjure the notion that the chief executive was in any way constrained, but he was perhaps the most flamboyant occupant of the Oval Office at flouting this norm—the weeks he spent cultivating and then inciting an attack on the Capitol being the ne plus ultra of his misrule.

A lack of accountability since then has served our nation poorly. Three years on from the January 6 insurrection, but before the primary elections have even begun, Republican lawmakers are already refusing to commit to certifying this November’s winner. I suppose the silver lining here is that there won’t be much violence a year from now—there’s no need to ransack a Capitol whose occupants have provided for its pillage in advance.

This week, however, Trump’s lawyers upped the stakes considerably, contending that the president could not be prosecuted for ordering SEAL Team Six to assassinate a political opponent, unless he was swiftly impeached by Congress and convicted for the crime in the Senate first. That’s cold comfort to Trump’s murdered rival, to say nothing of any impeachment-minded lawmakers, who in this infernal thought exercise would obviously be the next under the gun of Trump’s mercenaries.

We are, however, not completely unarmed against Trump’s thuggery: Article 3 of the Fourteenth Amendment lays out a fail-safe, disqualifying anyone who played a part in inciting an insurrection from holding office again. Unfortunately, while it is rare for the Supreme Court to disarm anyone, it will, in all likelihood, deny the American people this protection. But the Roberts court has been vastly aided and abetted by our political media, who after waiting so long for Trump to discover virtue, have quickly declared the Article 3 tool to be a vice—either searingly unfair to use in this instance or invalid on its face. When the decision eventually comes, the press will have created an environment in which the Supreme Court’s disregard for the Constitution’s text won’t be viewed as a radical act.

That this consensus was reached so quickly is something of a surprise, as the dominant mode of the pundit class is to venerate the Constitution as a peerless document, the final answer to all questions. As The New Republic’s Osita Nwanevu has written, this reverence may be unearned. But the media has gone to strange lengths to specifically discount this one part of the Constitution that was designed to prevent the crisis we now face.

An indelible example of this rough treatment was published in The New York Times on December 28, the day that Maine’s secretary of state decided that a plain reading of Article 3 compelled her to remove Trump from her state’s ballot. The Times could not let the matter pass without injecting opinion into what purported to be a straight news story, referring to Article 3 in derogatory terms: “an obscure clause of a constitutional amendment enacted after the Civil War.” The Fourteenth Amendment, in toto, is about 400 words long. There are no “obscure” parts to it—no small-print footnotes stuffed away in the back pages or lost-to-memory secret lore that requires Nicolas Cage’s help to unearth.

Those who’ve been more up front about their opinion-mongering haven’t been any less meretricious in their treatment of Article 3. Writing for his newsletter, Indignity, Tom Scocca provides a concise survey of those who’ve recently endeavored to “pretend” that the Fourteenth Amendment doesn’t say what it says, from the “half-baked excuses” from pundits to the “feeble political claims” of legal experts doing business as Constitution doubters.

One example that stands out for its sheer mendacity comes from Yale Law professor (and it’s almost always a Yale Law professor) Jed Rubenfeld, who pooh-poohed Article 3 for The Wall Street Journal’s opinion section, admonishing those who might wield it to save the country from harm that while the “Colorado Supreme Court didn’t exactly get the law wrong” when it plucked Trump from its ballot, the “problem” was “there was no law to get right,” on account of the fact that “almost no case law exists on Section 3 of the 14th Amendment.”

Indeed, one of the big reasons that there’s precious little case law on that particular part of the Fourteenth Amendment is that it’s hitherto proven to be such an adequate bulwark against a president ordering an insurrection that hardly any presidents have tried it. It’s generally pretty hard to generate case law when everyone agrees not to break a law. But Rubenfeld’s reprimands ring pretty hollow if we must, at the first instance of this law being broken, concede that the plain text of the Constitution is invalid.

The most idiotic case against the Fourteenth Amendment solution is the one that’s been made the most often: the idea that the people, and not judges, must decide Trump’s fate. As Kurt Lash recently scolded from the New York Times opinion page, this battle for the Republic must take place in voting booths or not at all: “Let the people make their own decision about Donald Trump.”

But where did Article 3 of the Fourteenth Amendment come from, if not “the people?” These words were ratified through the same democratic process as every other amendment to the Constitution. They weren’t put there by gods or monsters. Moreover, as The New Republic contributor Andrew Koppelman pointed out, “The people” have, on two occasions now, unambiguously rejected Trump. In 2016, their decision was thwarted by the Electoral College; in 2020, Trump reacted to his Electoral College loss by trying to overthrow its decision through the corrupt means that this Constitutional amendment was specifically written to prevent. How many times do “the people” have to render a decision before they’re allowed to use the Constitution to enforce it?

There is every possibility that, this November, the American people will, for a third consecutive time, do exactly what Lash demands and again decide that Trump is unfit to rule. It will be well within the realm of possibility that the popular vote will once again be overruled by the Electoral College—or there may simply be enough Republicans on hand to deny the American people the right to the decision they’ve rendered. How will those chiding the effort to forestall this fate through lawful means account for themselves, should this come to pass? What is it about the broken America they’re helping to usher in through their empty, repetitive screeds that they find so appealing? Are the clicks really that good?

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

Ever since the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization, the Republican Party has gotten a crash course in what it feels like to be the dog that caught the car. To the surprise of no one who’s spent the past few decades warning what might happen if the abortion rights protections offered by the 1973 ruling in Roe v. Wade perished at the hands of a conservative court, the Dobbs ruling rather swiftly unleashed dystopia across the land and brought a voter backlash with it—so severe that GOP elites, when last we checked in, were contemplating a “rebranding” of the pro-life movement.

That task will become all the more impossible given the persecution this month of a pregnant woman in Texas, which tells you all you need to know about the Republican vision of a post-Roe America.

In late November, Kate Cox learned that her unborn child had a dire genetic disorder called trisomy 18 that typically leads to a stillbirth or, in rare instances, a very short and unhappy life. Making matters worse, Cox had previously delivered two children by C-section, which created potentially life-threatening consequences for her delivery. And so, understandably, she wished to end her pregnancy.

But Cox lives in Texas, where it is illegal to perform an abortion except in some “narrow exceptions”—to save the life of a pregnant patient or prevent a “substantial impairment of major bodily function.” Her doctor, playing by the new rules of the road and having determined that Cox qualified for such an exception, obtained a ruling from a judge that would have permitted her to have an abortion. Texas Attorney General Ken Paxton then went to elaborate lengths to thwart her. Beyond merely getting the Texas Supreme Court to intervene, he sent threatening letters to area hospitals warning of the legal consequences of treating Cox. He also made sure to invoke Texas’s infamous abortion bounty law and sic the Lone Star State’s anti-abortion vigilantes on her and anyone else who might help her obtain the procedure. Cox ended up having to flee the state just to get the care she needed.

It’s worth underscoring some basic facts. Cox was no libertine, seeking to use abortion as a form of birth control in the popular caricature of abortion-seekers that the right likes to promulgate. She has two children and very much wanted a third. Doctors were able to offer her doomed child mercy and keep alive the possibility of her adding to her family at some point in the future. Paxton, however, took the position that the only just outcome would be for her to run the risk of leaving her children without a mother and her spouse without a wife, all for the sake of a warped ideology that’s already failed on its own terms.

The pro-life rebranding is thus proceeding exactly as I predicted it would, with the most extreme elements of the anti-abortion movement driving policy forward and grabbing headlines for the fringe ideas they’re birthing and the militancy by which they carry them to term. 

Texas Senator Ted Cruz is running scared from this story. Meanwhile, among the Republican presidential candidates, who have the most at stake when it comes to putting lipstick on the party’s anti-abortion pig, mealy mouths are the order of the day. As NBC News reported, none of the candidates “were willing to outright say they disagreed with Texas’ decision to deny Kate Cox an abortion, but they also weren’t jumping to defend the Republican politicians in the state.” There never were such sterling examples of courage and conviction. Nikki Haley, who has strained herself trying to locate a middle position on this issue, offered this nonsense: “We have to humanize the situation and deal with it with compassion.”  

What Haley doesn’t grasp is that we don’t need to reinvent the wheel. Humanity and compassion are qualities that were ever-present in the pre-Dobbs status quo. How do we know this? We know this because prior to the Supreme Court’s ruling, whenever people like Kate Cox needed humanity and compassion, they got it from their doctors. Humanity and compassion just ran seamlessly in the background, and these women never ended up in the news, fleeing their states, fearing for their lives, or watching their state’s attorney general try to destroy their families. Humanity and compassion didn’t just vanish by accident—the anti-abortion movement is hunting it to extinction.

I don’t personally believe that Republicans have any deeper thoughts to their extreme hostility to reproductive rights beyond a simple but deeply held belief that women are chattel. But you can judge for yourself. Their talk of humane exceptions to abortion bans is bunkum. Their talk of leaving abortion restrictions to the states: hogwash. Their talk of compromise is a lie. They even lie to themselves about how unpopular their position is. Left to their own devices, they will identify people like Kate Cox—a loving mother who played by the rules—and subject them to stupefying cruelty. And there will always be a next Kate Cox; there already are some next Kate Coxes in the news. The rebranding is well underway.

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