The Case of F*** You v. John Roberts

&c. by Jonathan Chait

 

 

The Case of F*** You v. John Roberts

 

Photo-Illustration: Intelligencer. Photo: Getty Images

 

Conservatives greeted the leak of Samuel Alito’s draft opinion striking down Roe v. Wade with expressions of horror and shock that quickly reached the point where Republican officials were likening the event to January 6. I don’t find the outrage completely phony. The Supreme Court’s confidentiality, and the ability of its judges to deliberate candidly in private, does play some role in upholding its legitimacy in the legal community and the broader public.

However, as I’ve pointed out, I believe this outrage should have left some room for the nontrivial possibility a conservative leaked the draft and some acknowledgement that previous leaks by conservatives have contributed to the erosion of the norm to which the right is currently paying public tribute. I likewise think that their protestations over the damage to the Court’s legitimacy would be more credible if they said something about the fact that their Senate nominee in Ohio has gone on the record to express his hope that Donald Trump will regain power and then ignore the Court when it stands in the way of crushing his enemies. That seems like a violation of Court-protecting norms several orders of magnitude larger than the leak.

Meanwhile, Politico has received still more leaks from inside the Court updating the public on the abortion deliberations. At least some of the leaks are clearly marked as coming from the right, reflecting the fact that the conservative legal movement has long engaged in table talk over Supreme Court debates and has simply come to expect that Federalist Society members will get the inside track.

As an aside to its update, Politico quotes a couple of well-connected conservative lawyers casually suggesting that an important factor in the outcome is that the right wing is angry at John Roberts for refusing to strike down Obamacare:

“There is a price to be paid for what he did. Everybody remembers it,” said an attorney close to several conservative justices …

“There does seem to be some bitterness among the other justices,” said Curt Levey, a conservative attorney and veteran of several Supreme Court confirmation battles … Maybe this is the ultimate payback that in the most controversial of all cases and the biggest threat to the legitimacy of the court that he no longer has the persuasive power.”

So when the ruling comes down in the case of Fuck You v. John Roberts, can we drop all the high-minded talk about the justices’ commitment to following the law wherever it leads and ignoring politics? Because conservatives openly signaling that their desire to stick it to Roberts plays a role in the decision will do more to undermine the Court’s legitimacy than leaking a draft opinion.

The anti-anti-Russia right has been struggling for a way to formulate its contempt for the victims of Vladimir Putin’s aggression. Open expressions of sympathy for Russia, of the sort Tucker Carlson once freely blurted out, have been rendered toxic by the invasion. In the past few days, they have hit upon a new message: Military aid for Ukraine is coming at the expense of domestic social needs.

“Nothing against Ukraine, but we could probably use that money here right about now,” announced Carlson, “After 100 years of virtually uninterrupted wealth generation, the American economy appears to be faltering in ways that are scary to anyone who’s paying attention.”

One question to ask is, in the absence of a Ukraine-aid bill, would there be any support in Congress for an equivalent package of domestic aid? The answer is no. (Indeed, current economic circumstances militate against spending more money on the economy, as this would only stoke inflation and prompt more rapid tightening.)

Another question, more to the point: If such a package were to stand a chance, would Carlson himself support it? The answer to that question is also almost certainly no.

The purpose of this hypothetical alternative is obviously to present a false choice. Carlson’s allies in the alt-right have embraced this message with striking discipline. Representative Thomas Massie blames Ukraine aid for inadequate infrastructure spending:

 

Yes, Massie voted against the infrastructure bill.

Donald Trump, Jr. and J.D. Vance say Ukraine aid should be contingent on fixing the shortage of baby formula – which is also not a choice, since the shortage of baby formula represents a failure of supply rather than inability to pay. If they have a plan to alleviate the shortage through spending, they have not revealed it.

In some ways, this message is a classic example of Trumpian pseudo-populism. It blames elites for problems, then gestures at solutions without outlining what they might be. It rhetorically positions itself to the left, implying a desire for greater spending, while serving as cover for opposition to any concrete spending program that might emerge. And its purpose is to confuse people and undermine support for a democracy threatened by Russia.

Ron DeSantis has signed a bill creating an annual “Victims of Communism” day, during which Florida public-school students will receive instruction on atrocities committed by communist regimes.

The atrocities of communist dictatorships are certainly a subject students should know about. What’s telling about this law is what it omits: any expectation that students be taught about right-wing dictatorships.

Opposition to communism is a necessary condition for supporting democracy but not a sufficient one. Some of history’s most bloodthirsty dictators were also fervent anti-communists. (Likewise, communist dictators and their supporters often made for enthusiastic anti-fascists.) Anti-communism stripped of support for democracy can devolve easily into a justification for authoritarianism.

An important theme of DeSantis’s career is that he sees liberty as threatened only by the left, and he defines the left to include liberal (small d) democrats in the New Deal tradition, including Barack Obama. His no-enemies-to-the-right strategy follows from this premise — he is willing to court extremists on the right because right-wing extremism is not a category of threat he recognizes.

It is tempting to view his “Victims of Communism” holiday as merely another exercise in trolling the left. But it reveals something deeper about his ideology.

DeSantis is also introducing a proposal requiring that Florida teachers “not define American history as something other than the creation of a new nation based largely on universal principles stated in the Declaration of Independence.” What an absurdly reductive frame for teaching American history — which has diverged from the principles stated in the Declaration of Independence in several glaringly obvious ways, including slavery. The contradiction between those ideals and reality has occupied important figures in American life since 1776. Indeed, taken at face value, it’s hard to understand how even the existence of slavery could be reconciled with a requirement that U.S. history be explained solely as the upholding of the Declaration’s principles.

DeSantis likes to use the excesses of the left to justify his policies. And those excesses do exist. But DeSantis is not proposing some return to fairness or adherence to fact. His objection to left-wing propaganda is not that it’s propaganda but that it’s the wrong kind of propaganda. He is for his own brand of indoctrination, and he is willing and able to place the power of the state behind it.

“Ron DeSantis is the new Republican Party,” writes National Review editor Rich Lowry. Descriptively, Lowry is making more or less the same case that I made in my long feature on DeSantis — the Florida governor has shrewdly grasped the power dynamics within the party and given both its base and its elite the things they most desire. The elite gets more competence than Trump and a continued fealty to the party’s pro-business, anti-redistribution agenda. The base gets an uncompromising culture-war conflict.

Normatively, we obviously have different views. Lowry shrewdly omits from his account some of DeSantis’s most important acts as governor: signing the first major poll tax since Jim Crow, muscling through an aggressive gerrymander that would slash Black representation, refusing to say whether Joe Biden legitimately won the 2020 election, and courting the alt-right. Lowry devotes a paragraph to praising DeSantis’s handling of COVID, calling him “well versed on the research and thoughtful about the lessons from other countries,” but fails even to mention DeSantis’s escalating support for the anti-vaccine movement, which has hailed him as a hero. (As a result of DeSantis’s efforts, which include appointing a vaccine skeptic as the chief health officer, Florida’s rate of booster uptake ranks near the bottom nationally.)

There is, however, one aspect of DeSantis’s authoritarianism that Lowry decides to defend rather than simply ignore: his bullying of Disney in open retaliation for the company’s criticism of his anti-gay law.

Previously, conservatives deemed corporate free speech to be absolutely sacrosanct, and even such modest acts as the criticism of a private firm by a president struck them as dangerous. But Lowry, while conceding the “dubious” method, proceeds to defend DeSantis’s strategy of using state power to intimidate potential critics:

The key, I think, is that for many people on the right, a libertarian-oriented politics was largely a way to register opposition to the mandarins who have an outsized influence on our public life. And it turns out that populism is an even more pungent way to register this opposition. Progressive domination of elite culture has now grown to include formerly neutral institutions like corporations and sports leagues. More conservatives are beginning to believe that the only countervailing institutional force is democratic political power as reflected in governor’s mansions, state legislatures and — likely beginning next year — Congress.

Of course, the method of first using democratic institutions to gain power, then turning those institutions into organs of the ruling party, is a hallmark of democratic backsliding.

Lowry’s combination of defending DeSantis’s authoritarianism and ignoring it when a defense is impossible is emblematic of the Republican mainstream’s response to Trumpism. They have given up on trying to reverse or even arrest the rising power of the far right. They have instead decided to ignore it and hope they can co-opt the movement to their own ends.

There are many people in history who have made similar calculations (not just the one example that probably springs first to your mind). These anti-democratic forces, once set in motion, acquire a momentum of their own that can be difficult to reverse.

In recent days, two studies have come out measuring the effect of school closings. Both found that remote school was very harmful, and especially harmful for minority students.

This chart, from Emily Oster, a co-author of one of the studies, is a striking visual demonstration. Look at the third column from the top, which compares the rate of in-person education to the drop-off in math scores. The correlation is very clear:

 

Why did schools inflict such terrible harm on their most vulnerable students? One reason is that at the time these decisions were being made, the progressive movement’s most strident voices proclaimed that virtual school would not harm students. Not only that, they treated this conclusion as self-evident and smeared anybody who suggested otherwise as a tool of a nefarious billionaire plot to destroy the teachers unions.

Here is something Joshua Mound wrote in January of this year:

A study by Brown University economist Emily Oster — whose data has been criticized as invalid and who has received funding from several billionaire donors — claims that the difference between a full year of virtual and a full year of in-person schooling was approximately 10 percentage points in a district’s math passing rate and four points in its English passing rate. However, passing rates plummeted across the country, regardless of whether schools were in-person or virtual — hardly surprising given the stress of the pandemic, students’ own illnesses, and the stunning fact that more than 1.5 million children have lost a caregiver during the pandemic. Complicating things further, Oster’s research showed that, in some states, virtual districts outperformed in-person districts. Moreover, swings of five or even ten points in passing rates occurred pre-pandemic, especially when measured at the district level.

This was totally, totally wrong.

I expect the people who made these claims are going to slowly back away and pretend it never happened, or perhaps retreat to the defense that nobody could have known better at the time. Because these debates are esoteric and specialized, many liberals may not appreciate what happened. If you’re not following them closely, it is difficult to understand the degree to which ideological, paranoid, and frequently deranged ideas have overtaken the progressive education space over the past decade.

Speaking of, this week I wrote about the Biden administration’s regulations on the Federal Charter Schools program, which appeared designed to strangle the program. In particular, I was astonished that the Department of Education refused even to explain the rationale to reporters, instead referring them to the Network for Public Education, a left-wing, rabidly anti-reform group that has received funding from teachers unions.

This naturally triggered another hyperbolic response from Carol Burris and Diane Ravitch, two of the Network’s founders, who are among the most influential progressive activists in the education space. Their response claims to “uncover” nefarious details about my wife’s work as an education policy analyst for a non-profit.

This is part of a years-long effort they have undertaken to create the appearance of a conflict of interest where none exists. To begin with, many journalists have spouses who work in politics or government, and whose work would be impacted in some way by changes to policy. Those roles are essentially never disclosed. Whatever you think the standard should be – and one could argue for a much stricter standard – it simply is not part of how opinion journalism operates. If there was a norm for opinion journalists to disclose whenever they opined on a subject that in some way touched on their spouse’s field, you would see an enormous number of these disclosures.

I mentioned in my column that the Network for Public Education is regularly cited in stories that do not mention its funding by teachers unions. I know by happenstance of a columnist that wrote a laudatory column about a teachers union leader whose group funds that columnist’s spouse. I don’t believe in the logic of the sins of one side justifying the other. My point is that my wife’s work is not a conflict of interest at all. But it is revealing that Ravitch and her allies have managed to sustain this fake conflict angle for years without ever having to account for a much more direct conflict of interest they are themselves undertaking. I think that does give a sense of the utter bad faith at work.

The dilemma I face on this issue is that if I ever write about education, even in a tweet, without going into my wife’s role, the unions and their allied messengers will accuse me of hiding it. So I have instead disclosed it many times, including (but not even close to limited to) here, here, here, and most recently, here. But when I disclose it, they treat that disclosure as if it is an admission of a conflict. They have created a situation where either choice can be spun as evidence of guilt.

I wrote extensively about my wife’s work here:

Robin has devoted her career to education policy: She studied it in graduate school, taught at a low-income school, worked in local and federal education departments, researched for a liberal think tank, did executive-level work for a charter-school network. Her current role is with a nonprofit organization, consulting for and providing technical assistance to schools and state education bodies. 

The union allies have falsely claimed that she works as an advocate for charter schools. Her employer does consulting work, with and about, both traditional and charter public schools. It is not engaged in advocacy and takes no position for or against charter schools or on any policy. She is not permitted to engage in advocacy.

Here is Burris’s alleged scoop:

His wife worked for Center City Charter Schools as a grant writer when that charter chain received two grants from the Charter School Program (CSP), the program whose loose rules he is now defending. Download the 2019 database that you can find here and match the years of dispersion to the resume of Robin Chait. But the undisclosed conflict continues to this day. Since 2018, Robin Chait has worked for West Ed which evaluated the CSP during the Betsy De Vos era. And her employer, West Ed, once got its own $1.74 million grant from CSP.

Again, despite Burris claiming I have never disclosed it, I’ve written that my wife used to work at a charter school. (“My wife, Robin Chait, works in education. She currently works for Center City Public Charter Schools in Washington.”) Her non-profit does contract work for many government bodies, including the U.S. Department of Education. But, again, the notion that opinion journalists need to find out every possible programmatic change that potentially affects their spouses’ employer is not a standard that does or should exist.

These accusations are only coherent within the world they’ve created, in which anybody who disagrees with teachers unions on policies can only be acting out of nefarious secret financial interests. The degree to which they have managed to create the illusion of an ethical issue is a measure of the delusional ideological paranoia that pervades their worldview.

Accusations against me are not your problem, but the Democratic party allowing its education policy to be influenced by crazy people is.

Glenn Greenwald spent the entire Trump era mocking liberals who treated Donald Trump as a threat to democracy and insisting the liberals themselves composed the real threat. During one brief moment in late November 2020, when Trump seemed to say he would leave office if he lost the Electoral College vote — failing to mention his ongoing efforts to change those results in his favor — Greenwald spiked the football:

 

This week, he appeared on Tucker Carlson’s show to offer a somewhat different analysis. Greenwald posited that regulation of social-media spaces caused right-wingers to grow violent. His theory is that just as pornography supposedly gives men a safe outlet for sexualized aggression, the ability to make empty threats of violence prevents them from doing the real thing.

Greenwald goes on to explain that social-media restrictions on the far right caused its adherents to try to overthrow the government:

When you crush it, you’ve now taken away the outlet, the peaceful outlet, that people have. And when you tell them they can no longer use the internet to gather with like-minded people, in exchange of grievances and organize, what do you think is gonna happen? They have no alternative but to engage in destabilizing and violent ends.

I think a lot of what we saw on January 6 was that notion, that Whoa, we don’t really have the democratic process — the basic civil liberties we were taught as children we can expect by being in the United States. So gathering together and protesting and storming things is the only outlet that we have left.

Well. A couple of points. First, it is obvious that the overwhelming motivation for the insurrection was that conservatives believed Joe Biden stole the election. They believed this because Trump insisted it, and the conservative media, including Greenwald’s cable network of choice, largely failed to refute his lies. Storming the Capitol is not an especially rational response to concerns that you’re being prevented from making violent threats online. It is a fairly rational response to the belief that the president was illegitimately denied a victory.

Second, let’s assume Greenwald is right, and social-media restrictions caused right-wing protesters to engage in an insurrection. Why, then, did he insist it couldn’t happen? And mock and belittle those who worried it might? The event he claimed was impossible now turns out to have been inevitable. And fortunately for Greenwald, this change accompanies his developing an explanation that exonerates his allies and places all the blame on the liberals.