To the Supreme Court, the 20th Century Was Wrongly Decided

When, in the Dobbs decision, Samuel Alito declared that Roe v. Wade had been “wrongly decided,” he succinctly stated the credo of a resurgent revanchist coalition that believes the Twentieth Century was wrongly decided. Over the last two decades, the Supreme Court has been instrumental in advancing this coalition's agenda, which is to dismantle the New Deal order and reverse the civil and social rights gains made since the postwar period. 

The execution of this agenda has been nothing short of a slow-motion coup against our freedoms. The Supreme Court has not only transformed itself into a democratically unaccountable lawmaking body; it has used this illegitimate power to create a one-way ratchet that makes the rest of our system less democratically accountable. Yet no matter how many times the Court tightens this ratchet, our political and opinion leaders keep asking whether the Court risks losing its legitimacy if it keeps this up – not what we should do now that legitimacy is a distant memory at best. 

We hear of “conservative” judges, yet not one of the six Republican-appointed justices demonstrate fealty to any consistent set of principles beyond giving more power to the gatekeepers who put them on the Court. Instead, we must call them the Federalist Society justices. All six are current or former members of the Federalist Society, an enterprise sponsored by right wing billionaires and corporations whose intention was capture of the legal system – and capture it they did. They knew this capture would be necessary in order to implement their agenda, since they couldn’t count on the majority of Americans to vote against their own rights and freedoms.

The campaign to repeal and replace the 20th century is an extremely well-funded enterprise, organized by people who have never made any secret of their plans. None of this is happening by accident. 

Yet for the most part, media coverage of SCOTUS continues to focus on the details of the individual cases on the docket: the arguments each side is putting forth, the likelihood that certain justices will find those arguments persuasive, and what a “win” for either side could look like. In the context of our current crisis, however, doing this is like narrating each segment of a bullet’s trajectory without naming the assassin or his target. 

In this post, we’ll take a few steps back from that “what did the bullet do today” perspective. 

1. The Coalition Against the Twentieth Century - This section identifies the antagonists, outlines how they came together through the Southern Strategy, and shows how two historical accidents – the 2000 presidential elections and the 2010 midterms – enabled the massive power grabs that have brought us to our current crisis.

2. The Originalist Con - This section reveals just how blatant and unprincipled the Federalist Society Majority has been in its execution of the coalition’s agenda. 

3. The Federalist Society Majority Juggernaut - This section lays out the enormous progress the Federalist Society Majority has already made to overturn the “wrongly decided” 20th century. This has included giving MAGA state legislatures new license to curtail voting rights and gerrymander themselves impregnable majorities that closely resemble the region’s one-party authoritarian rule during the Jim Crow era.

4. No Longer Legitimate?  We conclude with a look at how the Court’s “crisis of legitimacy” is actually a crisis for American democracy as a whole. 

The Coalition Against the Twentieth Century 

This revanchist coalition has two factions, which have come together through the Federalist Society to capture the nation's legal system. One faction, which I call the MAGA industrial complex, is a symbiotic combination of white grievance media (e.g. Fox, Breitbart), white Evangelical churches and their political expressions dedicated to white Christian nationalism, as well as supremacist militias and the NRA. 

When most of us hear “Make America Great Again,” we think of voters in their MAGA caps being stoked on by white grievance entrepreneurs like Trump and Tucker Carlson. We should instead be thinking of the elites and institutions that helped make MAGA one of America’s most successful political movements to date. We know, for instance, that the white Christian nationalist movement was built not around a moral concern for fetal life, but around panic over the court-ordered revocation of tax-exempt status for religious schools—particularly Bob Jones University, as well as the private religious “segregation academies'' that were founded in response to Brown v. Board of Education.¹  

The other faction in the coalition against the 20th century consists of the plutocrats and rapacious capitalists whose efforts long predate Trump and MAGA. Their efforts were largely unsuccessful until the 1960’s. Until then, the Republican Party, which was the party of business, nonetheless acquiesced to the New Deal order. This sentiment was famously expressed by President Eisenhower: 

Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or businessman from other areas. Their number is negligible and they are stupid.

The Southern Strategy

And then … in 1964 that “splinter” of “Texas oil millionaires” and “conservative” activists wrested the Republican presidential nomination for Barry Goldwater. Goldwater was trounced by 23 points. But rather than dispatching the Goldwater forces to the dustbin of history, this defeat simply convinced many that they would have to give ground on their ambition of electing anyone as “pure” as Goldwater. They were ready when, in 1968, Nixon reversed his position on civil rights, becoming the candidate that fused segregationists’ racist agenda with the traditional Republican business agenda. Nixon’s narrow victory in 1968 was deceptive. George Wallace siphoned off 14 percent of the most extremist voters, and combining Wallace’s and Nixon’s vote share reveals that there was a substantial majority consisting of Democrats (the backlash to the Civil and Voting Rights Acts) and traditional Republican voters. Kevin Phillips best laid out this blueprint in his book The Emerging Republican Majority. 

We generally think of the success of the Southern Strategy depending on the direct appeals of national Republicans to southern segregationist Democrats, with those voters changing their party affiliation without changing any of their values. The following map makes vivid something that has gone remarkably unnoticed. As Robert Jones and others have documented, from even before the Civil War, Christian churches played a critical role providing the “moral” basis for white supremacy. In this period, southern Evangelical and Fundamentalist churches continued to provide essential organizational scaffolding for preserving those attitudes and the salience of “social” issues in the region.  

Source: American Theocracy, Kevin Phillips

The Tea Party & the Takeover of the Republican Party 

Until the election of Barack Obama, Republican presidential candidates and congressional leaders placated the reactionary, nativist, white Christian faction of the party by nominating right-wing judges and embracing the dog whistles and symbolism of white Christian identity, while making little or no progress reversing the civil rights gains of the 1960’s. Indeed, as late as 2006, the Voting Rights Act was reauthorized with nearly unanimous congressional support, with Bush claiming credit.  This White House press release announcing Bush’s signing would be unimaginable coming from any MAGA Republican now.

We very much remember the 2000 election for its razor thin margin and the Supreme Court brazenly intervening to stop the count and select Bush. But we have all but forgotten that the reason the race was as close as it was can be attributed to Bush’s consolidation of the white Evangelical establishment, and with it, Bible Belt voters that made the race that close in the first place.² While Clinton won the Bible Belt by a hair in 1996, Gore lost it by 12 points – and more consequentially, he lost the electoral votes in 7 Bible Belt states Clinton had won.³ And Kerry would lose the region by an even larger margin, 16 points. Bush stressed his own born again experience and did much for the white Christian establishment, including his “faith based” initiatives. 

In response to Obama’s victory – and McCain and the Republican establishment’s immediate acceptance of his legitimacy – the nativist faction formed the Tea Party and focused on developing a political strategy to purge the Republican Party of “RINOs.” The last straw for this faction was Romney’s nomination and defeat. They revolted against the business wing’s “Autopsy” report, which in 2013 urged the GOP to moderate on immigration policies and dampen its racial rhetoric to stay competitive in an increasingly diverse electorate. Trump rushed into that political vacuum, smearing Mexicans as rapists and drug dealers. Crucially, unlike Goldwater, who faced a uniformly hostile and demeaning national media, Trump now had the advantage of the extensive right-wing media system that had since been established, which proved essential to his nomination and victory. 

The Originalist Con

It is important to understand that while the highest priorities of the coalition’s two factions do not much overlap, they can agree on the need to reshape political institutions and voting rules to advantage their political wing – the Republican Party – and to drastically limit the federal government’s ability to constrain their activities and protect us from their excesses. 

We might presume that MAGA is trying to take America back to the 1950s, before the civil rights and feminist movements made large and enduring strides for equality. But in truth, institutional MAGA’s golden age is more likely the 1920’s, when not only white supremacy and patriarchy reigned unchallenged⁴, but also plutocracy ruled the day, corporate power ran rampantly unchecked, and many elites openly sympathized with fascism and antisemitism. Peter Thiel is a latter day Henry Ford.

As we’ll see in this section, the Federalist Society Majority is not remotely subtle about running a long con to repeal and replace the 20th century. Yet somehow we allow these justices to pretend that they rule impartially based on a consistent set of “originalist” constitutional principles. 

Step 1: Capture

The corporate campaign to capture the courts and hijack democracy itself has been so exhaustively documented in works such as Jane Mayer’s Dark Money, Nancy MacLean’s Democracy in Chains, Anne Nelson’s The Shadow Network, Alexander Hertel Fernandez’s State Capture and Sheldon Whitehouse’s Captured and The Scheme: How the RIght Wing Used Dark Money to Capture the Supreme Court that there’s no need to recite it here.⁵

Suffice it to say that it is absurd to discuss Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas as individual jurists rather than as politicians who were effectively “appointed” to the Court by the Federalist Society. Whatever your (justifiable) problems with any of those individuals, if they had not been confirmed, there were dozens more lined up on the Federalist bench who would not be doing anything substantially different. (To be clear, I am not saying that the justices have been bought off; I’m reasonably confident they believe in what they are doing. I am saying that they wouldn't be Supreme Court justices if they hadn’t been able to convince the MAGA/corporate judicial gatekeepers of their commitment to the cause.)

The Federalist Society justices are team players, not impartial umpires calling balls and strikes. The Federalist Society is the owner, with the undisputed power to put justices on a short list of acceptable nominees for Republican presidents—who reject that list at their political peril. 

What’s more, this is a one-sided game. In 2001, Bush announced he would no longer rely on ratings from the American Bar Association as Democrats do, and that has become the Republican standard since. Justices appointed by Democrats are obviously more liberal, but they are not pulled from a short list of candidates compiled by a single pressure group that Democratic presidents must choose from in order to retain the support of the overwhelmingly powerful interests that group represents. And while Democratic Supreme Court nominations are not free of corporate, elite, or special interest influence, that’s in a different universe from the Republican status quo of a small, specific cadre of wealthy and ideological interests deciding to buy the Court outright in order to enact their specific, self-interested agenda. 

Step 2: Implement with Impunity

The American Constitution Society has compiled a list of 73 cases in which the Roberts court has handed down narrow 5-4 rulings that advanced one of four MAGA-friendly agenda items: (1) controlling the political process to benefit right-wing candidates and policies; (2) protecting corporations from liability and letting polluters pollute; (3) restricting civil rights and condoning discrimination; and (4) advancing a far-right social agenda.

A study by leading legal scholars including Richard Posner found of the 35 justices serving between 1946 and 2011, three of the five most business-friendly justices are on the court now – Alito (#1), Roberts (#2), Thomas (#4). They conclude that “the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were.”

To be clear, it’s nothing new to see Supreme Court justices rule in favor of the wealthy and powerful. (For more on this, read Ian Millhiser’s Injustices.) Nor is it new that Supreme Court justices are flawed human beings with unacknowledged ideological leanings and personal biases that could fuel arbitrary, post-hoc-reasoned decisions. 

But, until Bush v Gore, more often than not, when the Court handed down rulings with profound implications for the life of the nation, especially when those rulings overturned previous ones, the justices strenuously sought to come as close to a consensus as possible to demonstrate to the nation that regardless of their having been appointed by presidents of different parties, and despite having been seen to have ideological differences, they agreed on the matter at hand.

As well described in various accounts, Chief Justice Earl Warren worked strenuously to fashion a unanimous opinion in Brown, which included the assent of Justices Hugo Black (formerly a senator from Alabama) and Stanley Reed who initially said he “opposed abolishing segregation.”⁶ Likewise, Roe v. Wade (7-2), involved extensive and well-documented efforts at consensus-building, and justices appointed by both parties signed on to the majority opinion. 

Other major rulings decided unanimously include McCullough v. Maryland (1818), Schenk v. United States (1919), Loving vs Virginia (1969) and United States vs Nixon. (Indeed, contrast the ruling in US vs Nixon – when five justices, including the Chief Justice, voted against the president of the party that appointed them – with the ruling of the five justices appointed by Republican presidents in Bush v Gore.) 

The new status quo – where 5-4 decisions on matters of great national consequence are a matter of routine, where the idea of good-faith consensus-building is laughable, and where the outcome can be easily predicted in advance based on the political preferences of a single political pressure group – is utterly unprecedented in American history.

Step 3: Use Judicial Smokescreens to Cover the Tracks

It’s well past time to drop the pretense that this SCOTUS will judge cases in good faith or on their merits, or that “originalism” is anything more than a smokescreen.  

The ACS’s analysis of the “Roberts Court Five” decisions found that in nearly every one of these 5-4 cases, the Federalist Society majority disregarded core principles that these justices had declared allegiance to in their confirmation hearings, such as stare decisis or judicial restraint, and even showed an aversion to basic fact finding. 

Federalist Society-approved jurists are allowed to call themselves “conservative” even though they readily ignore conservative principles whenever it’s necessary to do so to realize their substantive aims. Similarly, their commitment to “originalism” has never been anything more than a post-hoc rationalization for rulings that have no other plausible explanation. (Actually) conservative Harvard legal scholar Adrian Vermeule acknowledged this in The Atlantic in 2020 when he wrote:

Originalism has done useful work, and can now give way to a new confidence in authoritative rule for the common good…. But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. 

For a thorough treatment of how specious originalism is as a legitimate judicial approach, see Worse than Nothing: The Dangerous Fallacy of Originalism by Erwin Chemerinsky.

The legal reasonings put forward to justify some of the Court’s most consequential decisions over the last 22 years have been a thin, self-justifying charade, made thick only by the enormous sums given to law journals to justify them, and the willingness of the good government industrial complex and the media to acquiesce to their claims of seriousness. 

The Federalist Society Majority Juggernaut

Now we’ll look at the specifics of just how much damage the Originalist Con has done to our country and our freedoms. 

The Supreme Court’s power is almost uncheckable, given the Senate filibuster rules – and the Federalist Society justices know and eagerly exploit that. While the following chart is only current through 2012, it illustrates how much rarer it has become for Congress to override SCOTUS rulings.

Since MAGA Republican Senators have effectively vetoed major policy making initiatives (outside the scope of reconciliation) since 2010, the Supreme Court has become a central, and unaccountable, policymaking arm of the federal government. Ian Millhiser summarized the policymaking “accomplishments” of the court (not including Dobbs or Bruen, which were handed down after this was published): 

In the same period, the Supreme Court dismantled much of America’s campaign finance law, severely weakened the Voting Rights Act, permitted states to opt out of the Affordable Care Act’s Medicaid expansion, created a new “religious liberty” doctrine permitting someone who objects to the law on religious grounds to diminish the rights of third parties, weakened laws shielding workers from sexual and racial harassment, expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system, undercut public sector unions’ ability to raise funds, effectively eliminated the president’s recess appointment power, and halted President Obama’s Clean Power Plan.⁷

Read each item in the list slowly, asking yourself whether Republicans, even when they had a trifecta in 2017-2018, could have enacted a single one of them, and how the media would have covered their efforts if they tried. Can you imagine trying to enact Citizens United or Rucho? Yet it is all the law of the land now, with no prospect for democratic review.

The source of the most significant policymaking over the last dozen years has shifted from the Congress to the Supreme Court. Yet the media has thoroughly acquiesced to this legislative coup – only discussing its consequences around the time of rulings, and the rest of the time devoting extensive daily coverage to partisan bickering of no consequence.

Or consider the MAGA Republican takeover of the House of Representatives in the 2022 midterms. To the extent that people mention the Supreme Court in connection to the 2022 midterm outcome, it’s only about how the Dobbs decision likely helped Democrats. Yet no one has drawn serious attention to the fact that Federalist Society justices – most of whom were rejected by senators representing a majority of the population at the time – literally handed four seats over to the MAGA Republicans.⁸ Or that their greenlighting of extreme partisan gerrymandering enabled new district lines that left nearly every Republican who had voted against certifying electoral votes unchallenged.⁹ Indeed, in the states in which Republicans drew the new lines, only one of the 90 representatives who voted against certification faced serious opposition, and he lost.

Recreating Authoritarian Enclaves

The term “authoritarian enclaves” was coined by Robert Mickey in Paths Out of Dixie: The Democratization of Authoritarian Enclaves. In that book, Mickey argues that from the late nineteenth century until the early 1970s, the southern states functioned as 

…pockets of authoritarian rule trapped within, and sustained by, a federal democracy. These enclaves—devoted to maintaining a dependable supply of cheap agricultural labor and ‘white supremacy’—were established by conservative Democrats to protect their political careers and their clients’ interests. Relying on several defenses, they ruled their polities without serious threat for half a century.

These authoritarian enclaves were made possible in large part by the Supreme Court. Beginning in 1883 with the Civil Rights Cases¹⁰ and continuing through Plessy, the Supreme Court did its part to declare that the Civil War had been wrongly decided – and with it the 13th, 14th, and 15th Amendments that had brought America so much closer to realizing the aspirations of equality laid out in the Declaration of Independence. These Court decisions, together with the KKK’s terrorist campaign, worked to ensure that white elites in the Jim Crow South could rule without the threat of true electoral competition. 

The following two charts dramatically show how, again with the Supreme Court’s assistance, MAGA has succeeded at rerunning this post-Reconstruction playbook. (I also featured these charts in my last post, and they are well worth repeating here.)

The first chart shows unified control of state legislatures – blue meaning that Democrats controlled both chambers of the state legislature, red meaning that Republicans controlled both chambers, and white when each party controlled one chamber.¹¹ The last 88 years are divided into three periods: 

• Jim Crow Era (1932-1968). Republicans never controlled a single chamber of a Confederate state legislature. In this era, of course, Democrats were the party of segregation and Jim Crow. 

• Voting Rights Era (1968-2008). Following the passage of the Civil Rights Act and Voting Rights Act. The Democratic grip on Confederate state legislatures continued until halfway through this period, at which point a semblance of two-party competition appeared. 

• MAGA Era (2008 - Present). Emerging electoral competition in the Confederate states was snuffed out in the MAGA Era. These states are now nearly as red as they were blue during the Jim Crow Era.¹² And we know that this will almost certainly be the case for the rest of the decade, given the recent round of gerrymandered redistricting that has been greenlit by SCOTUS rulings. 

In most of the Union states, two-party competition has been the norm throughout all three periods. It was rare for either party to control the state legislatures for more than 12 years consecutively, and control of the chambers was very often split (white spaces). 

In the Confederate states … well, just take a look.

The next chart looks at unified control of state government (the governor as well as both chambers of the legislature), using the same visual framework. Once again, we can see segregationist Democrats’ lock on state control in the Jim Crow Era. But we also see that almost immediately after its passage, the Voting Rights Act initiated an era of increasing, bona fide electoral competition. 

The likes of Jimmy Carter, Bill Clinton, Lawton Chiles and Jim Hunt were able to build winning coalitions consisting of business interests that were not committed to Jim Crow segregation, along with newly enfranchised Black voters. But MAGA brought that trend to a screeching halt; seven of the eleven Confederate states have had nothing but unified Republican control during the MAGA Era. In this sense, history is repeating itself. 

None of this would have been possible without Citizens United, Shelby, Brnovitch, or Rucho.¹³ For instance, ten of the original Confederate states had jurisdictions under section 5 preclearance following the passage of the Voting Rights Act, meaning that changes to their election laws were subject to federal oversight to make sure they are not violating the VRA. Not anymore.

Moreover, studies have consistently shown that Citizens United significantly increased Republicans’ success in state legislative races. For example, this study “analyzed data from more than 38,000 state legislative races between 2000 and 2012, in both groups of states.” It concluded that:

The chance of Republican candidates winning state legislative seats increased by about four percentage points on average as a result of Citizens United, and by 10 or more percentage points in several states. The decision also made it more difficult to unseat Republican officeholders, cementing the already strong financial advantage of political incumbents, and reduced the number of Democratic candidates who ran for office.    

Those findings were confirmed by a subsequent study.

MAGA (along with its Tea Party precursors) has already had significant success in implementing its agenda, which the sections below will further detail. 

Protecting Their Power Grab

As the lack of electoral competition might suggest, the overall quality of democracy has declined in MAGA-controlled states during the MAGA era. In his book Laboratories Against Democracy, Jake Grumbach developed a Democracy Index to measure the quality of democratic institutions in the states from 2000 to 2018.¹⁴ The former “Union” states score above average in his index, whereas the score in “Confederate” states is much worse and decreased roughly twofold by 2018. (The 2018 score, of course, doesn’t include the most recent round of gerrymandering, or the post-2020 voter suppression and election sabotage bills enacted in former Confederate states.) 

Former Confederate states have also made it demonstrably more difficult for people to vote. Scholars have been estimating the “cost of voting” for more than two decades by scoring each state based on metrics, such as average wait time at a polling place or whether the state allows early voting. This study provides both an index score (higher means it is harder to vote) for each state, as well as a database showing the scoring criteria going back to 1996. 

Social Policy 

Confederate states have seen a sharp increase, for instance, in pre-viability abortion bans and stand your ground laws. And while many Union states have passed paid family and sick leave in recent decades, no Confederate states have. ¹⁵

Economic Policy

On economic policy, the already-wide gulf between Union and Confederate states has gotten wider on issues like wages and the safety net.¹⁶

There is a consistent and striking divide in quality of life outcomes between Confederate and Union states. Those in the Confederate states are twice as likely to still be uninsured (largely thanks to their MAGA legislatures’ refusal to opt in to Medicaid expansion), and can expect to live lives a year and a half shorter. Not only is the likelihood of maternal mortality nearly twice as great in the Confederate states, if they were a nation, their maternal mortality rate would rank in the bottom three among OECD nations. 

MAGA remains committed to policies that maintain or worsen that divide. Even though poverty is higher in Confederate states than Union states, Confederate states continue to keep minimum wages lower, and have drastically reduced TANF assistance to low-income households. Confederate states reject gun safety measures even as they have 69% more gun deaths than Union states.¹⁷

No Longer Legitimate?

Given everything I have just described, it should be no surprise that public confidence in the Court has collapsed. Since the Dobbs decision, we’ve seen headlines about the Court’s historically low poll numbers and commentary about the dangers of the Court losing its perceived legitimacy as an institution. But Roberts, and unfortunately many others, insist that it’s all a temporary reaction to an especially unpopular opinion. That is certainly the tack taken by the Court’s defenders – that the point of the Court is to make the tough calls without fear or favor, which would mean that in some ways, the negative public reaction is proof that they are doing their jobs. 

Fortunately, since 1973 Gallup has been measuring how much confidence people have in the Court as an institution, not just whether people like or dislike the decisions the Court has been making lately. When we look at the long-term trends in public confidence, we can see that the “crisis of legitimacy” has been a longstanding feature of the Roberts Court.

This table shows that from 1973 through 2004, covering both the Burger and the Rehnquist Courts, average net confidence was about 33 points, and the range was almost identical. 

Net confidence during the first 15 years of the Roberts Court was half of what it was during the Burger and Rehnquist Courts, and no year was higher than the lowest net confidence recorded in the previous 32 years. With the addition of Amy Coney Barrett to the court, net confidence dropped from 16 points to just 4 points. In 2022, net confidence was negative for the first time. 

The public clearly understands that something is deeply wrong. Yet our political and opinion leaders refuse to spell out the full extent of what that is and what it means. 

Of course, liberal political leaders and commentators express genuine outrage at every new genuinely outrageous decision. We are often told that the Supreme Court is having a “crisis of legitimacy.” Yet this still dramatically understates the problem. It’s much more than a crisis for a single institution; the Supreme Court is supposed to be the final arbiter of what the rule of law means in the United States. The United States is supposed to be a land with an impartial (if also imperfect) set of laws that can be depended on not to arbitrarily change with political fortunes. By destroying the legitimacy of the Supreme Court as an institution, the Federalist Society majority is also destroying the idea of the rule of law in the United States.

Most of us like to say, and believe, that this is a nation of laws. What does it mean when a small, politically motivated, democratically unaccountable group of individuals can change the rules whenever it suits them? And more importantly, what do we do if the foundation of the rule of law has collapsed? 

These are deeply uncomfortable questions that few are even asking, let alone attempting to answer. Journalists and good-government nonprofits shy away from it for fear of appearing biased or partisan, and Democratic establishment leaders shy away from it for fear of appearing hysterical, and because to acknowledge it plainly would require a militant commitment to defeat it. 

Thus, the damage done by each decision is immediately laundered into a new normal, preventing us from seeing the escalating and compounding consequences of the Court’s decisions over time as they reshape political institutions and advantage the coalition’s members over the rest of us. The Court is always losing its legitimacy, but it’s still taboo to acknowledge that it’s truly lost.   

Our liberal institutions, good government groups, and mainstream opinion-leaders have unshakable confidence in progress – that, doggone it, the moral arc of the universe bends toward justice. To them, even massive existential blows to human rights like the Dobbs decision don’t rise to "in case of emergency, break glass" moments. This view can only be sustained by ignoring what is in plain sight. 

Here, James Baldwin still has the best advice for how to proceed: “Not everything that is faced can be changed, but nothing can be changed until it is faced.”

Footnotes

1. Some books that detail the white Christian nationalist movement’s origins and actions include The Power Worshippers (Katherine Stewart), White Too Long (Robert Jones), Bad Faith (Randall Balmer), American Theocracy (Kevin Phillips), Anointed with Oil (Darren Dochuk), White Evangelical Racism (Anthea Butler), The Family (Jeff Sharlet), The Immoral Majority: Why Evangelicals Chose Political Power Over Christian Values (Ben Howe), Taking Back America for God: Christian Nationalism in the United States (Whitehead, Perry), The Unheavenly Chorus (Kay Lehman Schlozman), The Televangelicals (David Body), and Politics in the Pews (Michele Margolis).

2. Here, I use the states in which the Southern Baptist Convention was the “strongly dominant Protestant church” according to Phillips in American Theocracy. (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and Virginia. 

3. Arkansas, Florida, Georgia, Kentucky, Louisiana, Missouri, and Tennessee.

4. In fact, there was a strong reactionary movement in the 1920’s in response to the gains Black Americans had made post-Reconstruction and following WW I. For more on the resurgence of the KKK in this era, see Behind the Mask of Chivalry by Nancy MacLean.

5. On top of that, the Federalist Society recently received a whopping $1.6 billion donation, which was circuitously given by conservative/libertarian mega donor Barre Seid.

6. Simple Justice (Richard Kluger) p. 598

7. Millhiser, Ian. The Agenda (pp. 8-9). Columbia Global Reports. Kindle Edition.

8. In the last year, the Supreme Court’s Federalist Society majority handed Republicans four extra seats, thanks to their decisions allowing four states to use maps in the midterms that violated the Voting Rights Act. In Merrill v. Milligan and Arodin v. Robinson, the Supreme Court ruled that Alabama and Louisiana should reinstate the gerrymandered maps that lower courts had ruled unconstitutional. And when SCOTUS used the “Purcell” principle to justify overturning the lower courts’ rulings, it caused a federal judge in Georgia to find that there, too, maps that were likely unconstitutional could not be re-drawn so close to the election.

9. I am not even including the Court ordered rewrite for New York because that is something that reasonable people might disagree with – my goal for this post is to show that you don’t have to pile up a bunch of ifs to get to the conclusion I reach. 

10. Civil Rights Cases, 109 U.S. 3 (1883) In an 8-1 ruling the SCOTUS found that acts of discrimination barring Blacks from public businesses such as hotels and restaurants are acts of private discrimination, and not violations of 14th amendment. As a result, sections 1 and 2 of the Civil Rights Act of 1875 were ruled unconstitutional. 

11. Technical note - the chart is based on control in each presidential election year beginning in 1932. It was not worth the effort to gain the precision to mark dates for state legislatures that are elected in odd years since doing so would not change the conclusion. Also, note that the charts reflect who controlled the legislatures in the election year, not who won the election that year. 

12. To be clear, I am not arguing that their ambition is to literally return to the objective conditions that prevailed in the Confederate states in 1965. Too much has happened since then. But that they have not re-established the ante-VRA Jim Crow regime in each of its particulars should be of no more relief than it would be to view Jim Crow as “better than” slavery.

13. Brnovitch further gutted what was left of the Voting Rights Act after Shelby, and Rucho opened the door to extreme partisan gerrymandering.

14. Zero is the average for the period from 2000-2018, and higher scores are more democratic. Regional numbers are weighted by state population; in other words, California’s Democracy Index has a proportionally greater impact than New Hampshire’s on the Union States number.

15. Sources for chart data: Abortion Bans: Kaiser Family Foundation, Guttmacher; Gun Laws: http://www.statefirearmlaws.org/resources; Paid Family Leave: Kaiser Family Foundation.

16. Sources for chart data: Minimum Wage: U.S. Department of Labor; ACA: Kaiser Family Foundation, WER Research; TANF: U.S. Department of Health and Human Services; Domestic Worker Protections: National Domestic Workers Alliance.

17. Sources for chart data: Life Expectancy: CDC; Household Income: U.S. Census Bureau, Current Population Survey, 1985 to 2022 Annual Social and Economic Supplements (CPS ASEC); Uninsured: ACS; Gun Deaths: CDC; Maternal Mortality: NCHS, National Vital Statistics System; Infant Mortality: Annie E. Casey Foundation, CDC, NCHS; Teen Pregnancy: CDC, KFF; Child Poverty: Annie E. Casey Foundation, ACS.