SCOTUS Reform

The Supreme Court is producing a large number of unsigned decisions on its “shadow docket” – largely on partisan lines. The Roberts court has chosen to focus public hearings on cases with a clear basis in law that produce unanimous decisions, while the conservatives decide controversial cases in forums that do not require them to produce a judicial opinion.

This is frustrating to those of us that believe the court should safeguard the rights of individual citizens, rather than represent the interests of moneyed elites. However, it also provides a clear rationale for restructuring the court.

The frequency of resort to the shadow docket is evidence that the SCOTUS is overburdened. It should be divided into two nine-justice panels: one court for decisions concerned with commerce and another concerned with personal liberty. The existing slate of justices can choose their bench, and new justices elevated with an 18-year term (with the initial terms staggered according to seniority). Cases that cross over the jurisdictional boundary will be heard in a special joint session.

Remember to Heal, Learn to Protect

At the Capital Mall memorial for the 400,000 dead of COVID, President Biden opined that remembrance is necessary to healing. This reflects the institution of Holocaust memorials, and the Vietnam Memorial wall. Great tragedies reflect a tearing apart in human nature, a locus in which dogmatism (Nazism, Colonialism, or Trumpism) tries to force society to conform to its views. To remember, as a psychic practice, is to confront lies with truth. Upon that foundation, we can then project the love that heals.

But healing is not enough.

We are on the “path of the knowledge of good and evil.” We cannot just paper over the past. Our burden is to understand it, and prevent its repetition.

Prior to the Sack of the Capitol on January 6th, Biden promised that he would “focus on the future.” That is an error. The perfidy of the last four years must be exposed, analyzed, and measures taken to guard against its repetition. While the Republican caucus – led by McConnell, Grassley, Nunes, Rosenstein, Graham, Sessions, and Trump – managed to squash full investigation of Russian interference in the 2016 election, the DoJ must be tasked with completing a full national security and financial review. The FEC (Federal Election Commission) must be reconstituted and tasked with a complete review of campaign finance during the Trump Administration. Every Cabinet officer must be tasked with exposing self-dealing by their outgoing predecessors. Congress, which is allowed to define the framework under which States conduct their elections, must expose bias in existing practices and ensure all voters are represented. And apportionment, manipulated by the GoP’s “Red Map” algorithm following the 2010 census, must be constrained by fairness algorithms that prevent gross bias in favor of any political party.

Much wrongdoing will be exposed, and it might be politically importune to pursue legal sanctions against the perpetrators. But without knowledge, we cannot learn, and the last four years will be repeated.

Biden’s desire for comity is laudable, and the olive branch should always be held out. But that olive branch should not be a used as a shield by the enemies of democracy to prevent exposure of their wrong-doing. At the very least, Biden must allow Kamala Harris, long known as a lion in the fight against corruption, to exercise her skills to maximum effect.

Grievance’s Baby

Catie Edmunson at the NY Times reports on the GoP rallying against Josh Hawley, the 41-year-old senator from Missouri who – even in the aftermath of the murderous attack on the Capital grounds – insisted on disrupting the formal certification of the Biden/Harris administration.

This dance should be familiar to us. It is the same dance the cynical grandees, among them McConnell and Ryan, conducted with Donald. They are a little more practiced, but what they are doing is actually the source of the danger that we face as a nation.

Neither Donald nor Josh created the aggrieved Republican base. That base was created by decades of corporate welfare that hollowed out the American middle class, making us a debtor populace. The red states are, in fact, basically large company towns. The common man is forced to work at wages below subsistence while owners maximize profits. The cynical lie told by the GoP to these wage slaves, however, is that their predicament is the fault of government.

Read Nineteen Eighty-Four or A Brave New World. The public spaces are saturated with the lies of the ruling party. Visit a red state and notice that FOX News broadcasts from the screens in every space controlled by corporate interests. But where in the novels the propaganda raised fears against foreign enemies, on FOX News the specter is the enemy within.

Ronald Reagan instigated the war on government with his little quip “The nine most frightening words I know are ‘I’m from the government and I’m here to help.'” FOX News, founded by GoP political hatchetman Roger Ailes, made that message a staple of its programming. The aggrieved condition of the Republican base has been carefully cultivated and manipulated ever since. For example, after the AHA was established, GoP governors refused to expand Medicare or form insurance exchanges, forcing the rural poor to pay for private insurance when they should have received government support.

So the GoP’s dance with Donald and Josh is simply about retaining control of the electorate that they have created. Donald wrenched it from them by unmasking the lie, campaigning against the “swamp” of Washington lobbyists. The GoP grandees tolerated him, at some level, because they believed that greed and stupidity would allow them to focus his attention. McConnell succeeded, for example, in packing the Federal court system with corporatists.

What McConnell and others didn’t remember is that – duh – they are sitting members of government. Donald actually needs the government destroyed to avoid imprisonment for decades of criminal activity. This matches the expectations of the aggrieved Republican base.

So we don’t see outright rejection of the claims of election fraud except from those previously ostracized by the party, such as Mitt Romney. Rather, we see Lindsey Graham testifying that the courts have already ruled on claims of election fraud, and “while [he doesn’t] agree with them,” the Senate has no method to challenge those rulings.

They don’t confront the lies because the lies are the foundation of their control over the rural poor. They are now trying to pre-empt Josh’s attempt to seize Donald’s standard.

The problem is that the messaging is out of their control now. The rage of the rioters in Washington was not restricted to the Democratic leadership. It embraced Mike Pence as well. The GoP base wants to see government destroyed, and the grandees appear not to be smart enough to fear the baby they have created.

The alternative is to tell the truth. The corporate elite controls the free market. They have that game rigged against us. In fact, government is the only method that allows us to organize to prevent them from grinding us into poverty. Government needs to work for us, and the most important job of a political party is to educate the people for collaboration that preserves the common welfare.

Box Score: Money 2, Value 1

Coming of age in the Reagan era, I failed to understand what I was witnessing. America abandoned manufacturing for services and ended up in a time warp.

As a corporate-level software consultant, my father Karl saw elements of this up close. Invited as a fellow traveler by the president of Wiley & Sons (the journal publisher), Karl sat in on the annual shareholder meeting. A careful investment plan charted growth in assets and employment. During the discussion, the CFO queried, “And what is the annualized rate of return on your plan?” With the follow-on to the response, “I can take that same money and make three times as much in the stock market.”

In that era, the stock market still reflected an investment in other people’s ingenuity. This year, as we approached the election, one Trumpie threatened, “Well, if Biden wins, you can be sure the stock market is going to tank!” The inescapable corollary is that the stock market is no longer an economic bell-weather but an instrument of political influence.

That influence is maintained through the ties between the Federal Reserve and the large banks. We are in the mind-numbing reality that the people that take care of our money no longer profit from making it grow, they profit by making it move. That may seem impossible, but the volume of real estate, trade, and government debt is so enormous that simply the placement fees run into the tens of billions of dollars annually.

The bind for the public is that the money center banks hold no interest in seeing the debt reduced. In fact, the Dow weathered recent financial crises because the Federal Reserve issued borrowing authority that the banks loaned to corporations to buy back stock. The value of stock is now linked to corporate debt.

And in the chaos only the financial system has a guaranteed benefit.

Was this intentional? Hardly, but it was inevitable. This is trumpeted by the liberal economists, but they misdiagnose the problem. I hope with this post to steer them in the right direction.

The liberal economists blame “capitalism.” Capitalism, coined by Adam Smith, is a recent innovation, seeing an effective implementation only in the industrialization of the Western world in the late 1800’s. Capitalism was actually a liberalizing social contract. It held that money and labor could collaborate to improve productivity. Higher productivity meant more money for investors and lower costs for labor. It was a win-win scenario.

Capitalism disproved the precepts of Malthus, who held that population growth would always overwhelm the benefits of productivity gains. In part, however, Malthus was proven right because political power was held by the moneyed noble class. Market control was awarded by royal writ, and once secured ensured resistance to innovation that might lead to diversification of supply. Stability of prices was also important to the nobility and their retinues, often sustained by stipends.

The crack in this hermetic system was warfare, and it was to finance their conflicts that the nobility turned to the banking system, leading to the coupling of political and financial interests that suppressed the development of liberal societies.

So the “Box Score” reads as it is because capitalism is now revealed as a brief interlude in the narrow marriage of politics and finance. It was an interlude during which finance married itself to the production of value and the growth of liberal societies.

Regardless of the outcome, the 2020 election proves at least one thing: that Donald Trump is a symptom, rather than a cause. The disease that created him is a return to the festering myopia of political and financial calculations freed from a concern for value or sustainability. Trump is used as a tool by that system to distract attention from the wizards behind the curtain. He is a live facsimile of the special effects in the Wizard of Oz.

How does this manifest in practical terms? Consider real estate. I was told recently that I had to get in the market, because prices would only go up. Looking over the finance package, I noted with surprise that is allocated 50% of my income to real estate costs, rather than the 30% typical of my youth. So the reason that real estate prices are going up is because the Federal Reserve, through Fannie Mae and Freddie Mac, is issuing loans that allocate more of our income to the payment of interest. The increase in home prices has nothing to do with value – it follows from a systematic manipulation of political and financial levers to ensure that we are indebted.

But the fault is not with capitalism. Capitalism was a God-send. The fault is with something I would call “monetarism” – the pursuit of wealth in the absence of any concern for value.

The economic historian should recognize this plague. What should give pause to the rest of us is the proof, in the results of the 2020 election, that the disease is worse that an out-of-control pandemic that has the potential to kill millions of Americans.

I hope that our democracy survives while our liberalizing politicians adapt to that lesson.

RBG and Roberts’ Rule

The Founders carefully allocated responsibilities among the branches to protect citizens from governmental over-reach. The Executive Branch has flouted those boundaries throughout the Trump Presidency, with Cabinet officers finally acting not as protectors of the Constitution, but as lackeys in service to the whims of the POTUS. In Congress, McConnell has used obstruction to undermine legislative deliberation, and focused on packing of the Federal Courts with partisans – using the filibuster when not in power, and then eliminating it for most positions during the Trump era.

The Roberts Supreme Court was the last holdout in the corruption of the Founders’ intentions. That has been uneven. Roberts hypocritically criticized the House Impeachment Managers for questioning the motives of the Republican Senate in failing to call witnesses, demanding respect for the “world’s greatest deliberative body” that McConnell has corrupted. But at least in the last Court session, Roberts insisted that precedent be honored, siding with the liberal members of the bench when his conservative peers attempted to over-ride prior judgments from his court.

With the death of Ruth Bader Ginsberg, that respect for precedent and the character of the Court is at risk. If Trump and McConnell succeed in seating a conservative ideologue, Roberts will find himself on the losing side in attempting to prevent arbitrary flouting of precedent.

The only method for restoring proper balance on the Court is for a Democratic-controlled Senate to mercilessly impeach Justices for judicial over-reach. The popular expedient – expanding the number of Justices – would be a mistake. Proper functioning of the Court requires thorough probing of the constitutional issues during oral arguments. As more Justices are added, that process will become unwieldly.

No, the proper approach is to erase McConnell’s legacy, just as he and Trump have worked to erase the legacy of our most popular politician (President Obama). Set up the impeachment express, and flush all the Conservative hacks out of the judiciary.

No Turning Back Now

In a nutshell: the last forty years (since Reagan) has been an exploration of the neo-conservative proposition that the only legitimate way to negotiate the distribution of power is the free market. It led initially to deregulation and then “trickle-down economics.” As the evidence mounted that those strategies were failing, the ideologues used their control of government to rig the system so that the subscribers to the ideology enjoyed financial success — a “tinkle-down” economics that undermined the operation of the free market.

What we are witnessing in 2020 is demonstration after demonstration that the profit motive, left unchecked, creates fragile systems that cannot survive disruption. To survive in this era, the public at large will move to make the economic elite irrelevant. That is evident in political exercises that insist “we will take care of those threatened by economic and political disenfranchisement.” Examples include the CARES and HEROES acts, lining up to vote during a pandemic, giving away food and drink to BLM protesters. The elite can attempt to pull the financial rug out from under these efforts, but what they will discover is that it is far easier to nationalize assets than it is to buy them. People without a stake in the system, looking into a future with no opportunity, will construct a parallel economy built around value, rather than profit.

Chief Injustice

When the founders designed the Federal government, they thought carefully about how to ensure that at least one branch would be protected from electoral pressure – the Judicial Branch.

The other branches of government have staggered turnovers: the House of Representatives every other year, the Senate every six years, and the President every four years. The idea was that the longer the term, the more resistant to public pressure. It is for this reason that the Senate prides itself on being the “greatest deliberative body in the world.”

But the federal judiciary serve lifetime terms because they are intended to be immune to political pressure. They need not consider how a decision or opinion from the bench will affect their electoral prospects. This allowed the Supreme Court, early in the history of nation (Marbury vs. Madison), to claim the role of deciding whether the actions of the other branches were legal under the terms of the highest law of the land – the US Constitution.

The founders understood that political actors would use the powers of office to secure their position. In other words, the founders understood that every act by a elected official would have political consequences. In the hoped-for outcome, good policy would lead the voters to re-elect the official. In the unfortunate case, exposure of misconduct would cause the voters to deny the official their office.

Unfortunately, that requires that the misconduct be revealed. The founders again provided diverse methods for that to occur. The first is the free press. The second is the balance of powers: each of the three branches has the opportunity to check misconduct in the other branches.

The Supreme Court is intended to be the branch most immune to pressure when it exercises that responsibility. Unfortunately, it has abdicated that role. Under the guidance of “Chief Justice” John Roberts, the justices selected by Republican presidents have decided that they wish to avoid “political involvement.”

This is absolutely childish. Every act of the federal government has political outcomes. That one party or the other claims a case is “political” is natural, but irrelevant. The job of the court is to decide whether the actions of officials in the other branches is legal under the Constitution. To abdicate that role is absurd, childish, and cause for impeachment. It is the reason that the Supreme Court exists.

This is not idle speculation. The Court, considering the national conspiracy to disenfranchise electors in 2010 (The GoP “Red Map” project), determined that it was “nonjusticiable.” In other words, the Court would not decide whether the plan violated the Constitution right to vote in free and fair elections.

Similarly, the conservative members of the Court have avoided intervention to enforce Congressional subpoenas that are essential to exposing criminality in the Executive Branch.

This injustice is a political act. The chief proponent of that policy, John Roberts, is woefully ill-suited to his role. Claiming that the Court should avoid political entanglements is absurd. When a question of legality or legitimacy is brought before the court, the only criterion that the Court can consider is the Law, with the Constitution as the ultimate standard for legality.

Postal, Going

In the run-up to Henry V’s invasion, the French state was weakened by the reign of a delusional king. Charles VI went through long periods as an alternate personality. The court politics was organized around ensuring access to the king during his initial moments of coherency. The lucky individual had complete control of the affairs of state.

What is pathetic in the current era is the obvious manipulation of our Chief Executive by the unscrupulous. Trump is a paranoid delusional, his antagonism to government reinforced during impeachment by the parade of public servants who came forward to expose his malfeasance.

The fear of destruction justifies all selfishness. In an executive, it is thus the crowbar used to destroy institutions. The characteristic attitude of selfishness is “I do not care what it cost to make this. I do not care how much damage its loss will cause. If I want it, I will take it; and if it threatens me, it will be destroyed.”

Trump’s usefulness to the selfish is no more evident than in his decision to abandon the Postal Service, the largest non-profit public service institution in America. With the threat of universal vote-by-mail kept in the shadows, he manufactured a charge that the Postal Service subsidizes Amazon deliveries. Delivered with absolute conviction – as was his assertion that injecting disinfectants would cure COVID-19 infections – clearly the same process is in play: he was given a brief by someone, and passed the information on to the public as true.

The Postal Service has been under attack by private delivery services for many years. Much as in the health insurance market, they want to carve out the low-cost delivery operations in urban areas, abandoning the rural communities. That those communities, already deprived of health care services, would be further cut adrift and disempowered electorally, is of no concern to them. They simply seek profit.

Indentured to Incompetence

When the Clinton Administration briefed the incoming Bush team, they emphasized the importance of sending a clear response to the bombing of the USS Cole. The Bush foreign policy team sneered, proclaiming the Cole a “Clinton failure,” and went merrily about strong-arming Russia and China to modify nuclear weapons treaties to allow the design, test, and deployment of a nuclear missile shield. Remembering the inanity of the designs promoted during the Reagan and Bush era, I shook my head. Some in positions of influence tried to trumpet warnings: Tom Daschle, Democratic head of the Senate majority, stood on the Capital steps late in the summer of 2001 to voice his concern that the Bush team was baiting the wrong bear.

Daschle’s priority was international Islamic terrorism. It took only a month for his fears to be realized, horrifically, with the event known now simply as “9/11.”

The cost multiplier for inaction was astonishing, and certainly enormously satisfying to bin Ladin and those inspired by his an example. A meaningful response to the Cole would have cost perhaps $10 million. The response to the coordinated attacks on the World Trade Center, Pentagon, and Congress – involving two wars, time-consuming and costly restrictions on travel, and interruption of international commerce – mounted into the trillions of dollars. For every dollar not spent on prudent prevention, we spent nearly a million dollars.

Swallowing their criticism, the rational party accepted the outcome of the Bush Administrations incompetence as “the new normal.”

Today, with the nation’s economy smothered by pandemic, the apologists for the Trump Administration insist that this is “the new normal.” But step back into the last Democratic executive, a man excoriated by Trump’s “Birther” movement, and we see that this is nothing normal at all. The Zika and H1N1 threats were effectively neutered by the Obama Administration. The total number of lives lost was in the low thousands, with no significant impact on the economy.

The lessons learned from those efforts were institutionalized in protocols for international cooperation led by a team directly in the White House itself.

While I respect the Office of the Presidency, my scorn for Trump is complete due to his utter contempt for the office itself. The Presidency is not a man, it is an institutional process for coordinated decision-making and action. Information is fed into the White House and plans flow out. Trump has not only besmirched the office, he has decimated the processes built over two hundred years to empower presidents to accomplish the nation’s goals. The motivation for those willful acts is Trump’s record of corrupt business dealings, evidenced even during his campaign as he attempted to wield his political prominence to influence civil cases already in progress. Once in office, he systematically bent the powers of his office toward destruction of the institutions assigned to prosecute his corruption.

While the politicization of the security and foreign policy services may be the longest-lasting of those institutional rapes, in real time we are finding ourselves again indentured to incompetence in the Executive Branch. Elimination of Obama’s pandemic action team left the world without a leader in the reaction to COVID-19. The early response to the disease has already cost trillions of dollars, and we can expect the death toll to rise toward 100,000 American lives. Millions of jobs have been lost under the weight of business failures. The obligations of missed payments and unfulfilled contracts will take years to unravel in the court system.

And Trump’s supporters shrug their shoulders and mourn “This is the new normal.” No it’s not. It’s the old abnormal. Wake up, and if you’re unwilling to vote for a Democrat, at least stay home until your party can prop up a candidate with at least minimal competence. I, for one, am tired of being indentured to your blind loyalty.

“We Will Get Through This”

No we won’t, Donald. Hundreds of thousands of us will get sick, perhaps 100,000 will be unable to resume their previous life because of lung damage, tens of thousands will die.

All because you did not act when the Democratic caucus advised you on February 5th that you needed funding to plan for the outbreak. All because you downplayed the danger and allowed people to continue to congregate. All because you did not act to ensure supplies and equipment were in place.

You can “play by instinct” and do your word salad and monitor your Tweet likes to find out what plays well with your base. You may escape blame. But the hospitals and governors will assemble the numbers and you will be called to account in the next election.

You said we’d “win so much you’ll get tired of winning.” Well we’re dying instead, and even Twitter won’t save you from that contrast when November comes around.