Sunday, June 12, 2022

The Radical Right Supreme Court, Part Two, Clarence Thomas


Thomas was born in 1948 in Pin Point, Georgia, a small, predominantly black community near Savannah founded by freedmen after the Civil War. He was the second of three children born to M. C. Thomas, a farm worker, and Leola "Pigeon" Williams, a domestic worker. They were descendants of American slaves, and the family spoke Gullah as a first language. Thomas's earliest known ancestors were slaves named Sandy and Peggy, who were born in the late 18th century and owned by wealthy planter Josiah Wilson of Liberty County, Georgia. Thomas's father left the family when Thomas was two years old. Though Thomas's mother worked hard, she was sometimes paid only pennies per day and struggled to earn enough money to feed the family, and was sometimes forced to rely on charity. After a house fire left them homeless, Thomas and his younger brother Myers were taken to live in Savannah with his maternal grandparents, Myers and Christine (née Hargrove) Anderson.

Thomas then experienced amenities such as indoor plumbing and regular meals for the first time. Myers Anderson had little formal education, but built a thriving fuel oil business that also sold ice. Thomas has called Anderson "the greatest man I have ever known." When Thomas was 10, Anderson started taking the family to help at a farm every day from sunrise to sunset. Anderson believed in hard work and self-reliance, and counseled the children to "never let the sun catch you in bed." He also impressed upon his grandsons the importance of a good education (Wikipedia 2).

In the fall of 1967, Clarence Thomas and 64 other young Catholic men entered Immaculate Conception Seminary in the northwestern Missouri town of Conception with the goal of becoming priests. Half the students, including Mr. Thomas, left the seminary after the first year.

Mr. Thomas later told several black friends about the incident that many believe prompted him to leave. On April 4, 1968, the day the Rev. Dr. Martin Luther King Jr. was assassinated in Memphis, a group of students were watching television coverage of the event. Mr. Thomas heard one white student remark, "That's what they should do to all the niggers."

Jerry M. Hunter, general counsel for the National Labor Relations Board, said of Mr. Thomas: "He remembers thinking, 'We're supposed to be people of God. If people have that view here, then this is not a place for me to be.' "

Mr. Thomas transferred to Holy Cross. He and most of the college's few dozen black students were housed together in Healey Dormitory, named for a black Roman Catholic bishop, said the Rev. Joseph J. LaBran, who is still a residence counselor at the college.

Administrators thought that placing the students together would help them find support in the overwhelmingly white school, he said. But the dormitory has since been integrated.

In 1969, several students protested the campus recruitment of students by General Electric because of its military work. The administration expelled some protesters, but while most of the protesters had been white, about half of those expelled were black.

Almost every black student, including Mr. Thomas, walked off campus until the administration reinstated those expelled, Father LaBran said.

Stanley E. Grayson, a former deputy mayor of New York City, was a friend of Mr. Thomas at Holy Cross, where they were both active in the black student union.

"Clarence was always an independent thinker," Mr. Grayson said. "He was the type who was going to look at a set of circumstances and reach his own conclusions. And I think that probably exists today" (Margolick 1-2).

Just about every evening, a few minutes after 11, there Clarence would be coming through the door from the library, every single evening,” recalled Edward P. Jones, the Pulitzer Prize-winning fiction writer known for his work chronicling Black lives in Washington, who lived down the hall from Thomas as a sophomore. “There was a fierce determination I sensed from him, that he was going to get as much as he could and get as far, ultimately, as he could.”

Thomas got his law degree from Yale but stuck a 15-cent cigar sticker to the frame of his diploma after failing to get a big law job — such firms, he would write, attributed his academic pedigree to preferential treatment. Instead, he took the only job offer he received and went to work for Missouri’s Republican attorney general, John Danforth, and discovered the writings of the Black conservative Thomas Sowell, who assailed affirmative action as undercutting self-reliance; Thomas wrote that he “felt like a thirsty man gulping down a glass of cool water” to see his own beliefs articulated. A few years later, after he was appointed by Reagan to head the Equal Employment Opportunity Commission, he would complain that Black civil rights leaders “bitch, bitch, bitch, moan and moan, whine and whine” (Hakim and Becker 12).

Thomas was the only African-American member of Danforth's staff. He worked first in the criminal appeals division of Danforth's office and later in the revenue and taxation division. He has said he considers Assistant Attorney General the best job he ever had. When Danforth was elected to the U.S. Senate in 1976, Thomas left to become an attorney with the Monsanto Chemical Company, in St. Louis, Missouri.

Thomas moved to Washington, D.C., and again worked for Danforth from 1979 to 1981 as a legislative assistant handling energy issues for the Senate Commerce Committee. Thomas and Danforth had both studied to be ordained, although in different denominations. Danforth championed Thomas for the Supreme Court.

President Ronald Reagan nominated Thomas as Assistant Secretary of Education for Civil Rights in the U.S. Department of Education on May 1, 1981. Thomas's nomination was received by the Senate on May 28, 1981, and he was confirmed to the position on June 26 … Journalist Evan Thomas once opined that Thomas was "openly ambitious for higher office" during his tenure at the EEOC. As chairman, he promoted a doctrine of self-reliance, and halted the usual EEOC approach of filing class-action discrimination lawsuits, instead pursuing acts of individual discrimination. He also asserted in 1984 that black leaders were "watching the destruction of our race" as they "bitch, bitch, bitch" about Reagan instead of working with the Reagan administration to alleviate teenage pregnancy, unemployment and illiteracy (Wikipedia 4).

Clarence and Ginni [Virginia Lamp] met in 1986 at a conference on affirmative action, which they both opposed. After a stint at the civil rights office of the Education Department, he was running the E.E.O.C.; she was an attorney at the U.S. Chamber of Commerce and mused that year to Good Housekeeping about someday running for Congress. She had extracted herself from a New Age-y self-help group called Lifespring, which she would denounce as a cult, but was still attending meetings held by a cult-deprogramming organization, and she took him along to one. He would describe her as a “gift from God,” and they married in 1987 at a Methodist church in Omaha; it was her first marriage, his second. “There’s no other way to politely say this, but the fact she married a Black man must’ve caused an uproar in that family, I can’t even imagine,” said Scott Bange, who dated Ginni in high school. In 1991, one of Ginni Thomas’s aunts told The Washington Post that the future justice “was so nice, we forgot he was Black,” adding, “He treated her so well, all of his other qualities made up for his being Black” (Hakim and Becker 12).

in June 1989, President Bush announced he would nominate Thomas to the U.S. Court of Appeals for the D.C. Circuit.

In his meetings with white Democratic staffers in the Senate, Thomas wrote, he was met with ill-concealed hostility." He says he was "struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights." But his confirmation hearing to the federal appeals court would prove uneventful, and he got the support of a number of influential African Americans …


Thomas had been on the appeals court mere months when Justice William Brennan stepped down, and rumors circulated that Thomas was on the short list to replace him. Bush actually wanted to nominate Thomas for that seat. He was worried about the "optics" of nominating him to replace Justice Thurgood Marshall, if he were to retire, because he didn't want Thomas to be perceived as a quota pick.

But Bush's advisers, including White House Counsel Boyden Gray, believed it was too soon for Thomas, so Bush tapped another new appeals court appointee, David Souter of New Hampshire. Souter had spent seven years on the New Hampshire Supreme Court and had worked in state government before that. But he had yet to write a federal court opinion or grapple with hard federal constitutional law questions — as the Bush Administration would realize soon enough when the inexperienced Souter, once on the Court, proved to be less conservative than they had ever expected.

The next year, Marshall — a civil rights icon — announced his retirement. Thomas heard he was the leading candidate and wrote that he "felt sick" at the prospect of being a Supreme Court nominee. He worried about spending the rest of his life as a judge, and he worried about the battle it would take to get him confirmed because of his outspoken views.

But on the last day of June, President Bush phoned Thomas in his chambers in Washington. He asked him to come to Kennebunkport to discuss it with him, so Thomas flew up alone, not sure if he was being interviewed or selected. Virginia suggested he write a statement just in case. At her suggestion, he inserted in the statement that it was "only in America" that someone with his humble background — a poor black child from the segregated South — could grow up to become a Supreme Court nominee.

As Bush introduced Thomas to the nation, Thomas heard the clicking of the cameras, which he wrote "sounded like summer rain falling on the tin roof of our hand-built house in Liberty County, the individual drops blurring together in a steady pitter-patter." Standing beside the President, Thomas thought of his grandparents, and he suggests he had a sense of foreboding. He wrote that he recalled the ants he had watched as a child on the farm, building hills one grain of sand at a time, "only to have them senselessly destroyed in an instant by a passing foot."

"I'd pieced my life together the same way, slowly and agonizingly," he wrote. "Would it, too, be kicked callously into the dust" (Greenburg 1)?

TV viewers, both male and female, watched in increasing discomfort as the senators asked [Anita] Hill about large-breasted women, a porn star named Long Dong Silver and pubic hair on a Coke can, among other previously unthinkable subjects for a Senate committee hearing.

But for women, Hill’s testimony would have special significance, as it was the first time someone had so publicly shared her account of workplace harassment—something that so many of them had experienced.

Though the committee would eventually confirm Thomas, making him only the second Black man to serve on the Supreme Court, the impact of Hill’s televised testimony would reverberate dramatically across the nation, with lasting consequences that endure today.

I think women saw play out, in the most human terms, Anita Hill—credible and very much reflecting the experiences of so many other women—being demeaned, being dismissed and being mistreated by an array of male senators,” says Marcia Greenberger, founder and co-president emerita of the National Women’s Law Center. “And when they reflected upon it at the end of the hearings, their anger began to rise, and their determination to do something about it began to increase.”

Both Thomas and Hill had risen from poor rural childhoods in segregated America, graduated from Yale Law School and launched promising legal careers in Washington, D.C. Their paths converged at the U.S. Department of Education in 1981, when Thomas hired Hill to be his special assistant in the department’s Office of Civil Rights.

Shortly after that, according to Hill, Thomas began harassing her, a pattern that would continue after Thomas left his post to become chairman of the Equal Employment Opportunity Commission (EEOC), and Hill moved with him to continue as his assistant.

Hill, who left Washington in 1983 and became a law professor in her native Oklahoma, was initially reluctant to come forward with her allegations against Thomas. But in the late summer of 1991, she was contacted by members of the Senate Judiciary Committee who had heard rumors of possible misconduct by Thomas against at least one female employee in his past. After a three-day FBI investigation led the White House to determine the allegations were “unfounded,” the reporter Nina Totenberg of NPR learned of the FBI report and revealed Hill’s accusations to the public for the first time.

On October 11, Hill testified before the committee that Thomas had asked her out repeatedly and that even after she refused, often talked to her in graphic detail about sex. Throughout the brutally uncomfortable questioning by senators, Hill retained her composure, even when forced to repeat again and again the most disturbing and embarrassing parts of Thomas' alleged harassment. Years later, the committee’s Democratic chairman, Joe Biden, would publicly apologize to Hill for not protecting her from his fellow senators’ grilling.

Thomas vehemently denied Hill’s allegations and invoked racial discrimination, calling the hearing “a national disgrace...a high-tech lynching for uppity Blacks who in any way deign to think for themselves,” imagining Thomas’ harassment, or of committing “flat-out perjury,” in the words of Senator Arlen Specter of Pennsylvania. Senator Orrin Hatch of Utah even accused her of borrowing the Coke can incident from the 1971 novel The Exorcist. Despite Hill’s testimony, and that of four corroborating witnesses who said she talked with them about Thomas’ behavior at the time, the Senate voted to confirm Thomas 52-48, the narrowest margin in nearly a century. (Pruitt 1-2).

Works cited:

Clarence Thomas.” Wikipedia. Net.

Greenburg, Jan Crawford. “Clarence Thomas: A Silent Justice Speaks Out” ABC News, October 1, 2007. Net.

Hakim, Danny and Becker, Jo. “The Long Crusade of Clarence and Ginni Thomas.” New York Times Magazine, February 23, 2022. Net.

Margolick, David. “Judge Portrayed as a Product of Ideals Clashing with Life.” New York Times, July 3, 1991. Net.

Pruitt, Sarah. “How Anita Hill’s Testimony Made America Cringe—and Change.” History, updated February 9, 2021. Net.

Thursday, June 9, 2022

The Radical Right Supreme Court: Part One, Introductory Opinions

Justice Amy Coney Barrett is offended by those questioning the impartiality of the Supreme Court.

This Court is not comprised of a bunch of partisan hacks,” she announced at a recent event at the University of Louisville’s McConnell Center, named for Senator Mitch McConnell. “Judicial philosophies are not the same as political parties.”

For Barrett to insist on her nonpartisanship at a center named for the legislator whose procedural hardball was instrumental in securing her seat suggests that, although Barrett’s peers have praised her legal mind, her sense of irony leaves something to be desired. But then, it’s not much more absurd than her colleague Justice Brett Kavanaugh insisting on his impartiality days after vowing revenge against the left while under oath. Similarly, Justice Clarence Thomas recently warned against “destroying our institutions because they don’t give us what we want, when we want it,” complaining that “the media makes it sound as though you are just always going right to your personal preference.” Next month, Thomas will give a keynote address at a symposium celebrating his years on the Court at the right-wing Heritage Foundation, alongside McConnell.

This insistence—that justices are simply following the law—is a common rhetorical tool in the partisan conflict over the Court. The most partisan judges will not admit to being hacks, instead framing their actions as consistent with the rule of law. No one wants to admit to being a hack; even hacks have to sleep at night, and resting is much easier if you’ve convinced yourself that you are an infallible tribune guided by the infinite wisdom of the ages.

The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come. Anticipating their future triumphs, though, the very justices championed by this movement have taken to denying both this victory and its implications, insisting that this casino is resolutely opposed to gambling—in fact, it’s not a casino; it’s a church, and its critics are engaging in acts of civil blasphemy. With absolute control of the Court, the conservative legal movement’s main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn’t make the proposition that the justices are free of partisanship any less ridiculous.

In the 1970s, in the aftermath of Supreme Court decisions on due process, segregation, abortion, Church-and-state separation, business regulations, and pornography, conservatives sought to recapture the Court and bend it to their will. Conservative legal organizations helped groom generations of conservative attorneys whose decisions would more often reflect the political and policy views of the Republican Party. Where judges and justices have diverged from those preferences, the conservative movement has reacted with outrage.

As the political scientist Steven Teles writes in The Rise of the Conservative Legal Movement, in 1972 Patrick Buchanan, then an aide to President Richard Nixon, exulted that “the president has all but recaptured the institution from the Left; his four appointments have halted much of its social experimentation; and the next four years should see this second branch of government become an ally and defender of the values and principles in which the President and his constituency believe.”

That turned out not to be true at the time—a fact that would inspire the rise of the powerful conservative legal infrastructure that has led to a 6–3 majority on the Supreme Court, despite the fact that a Republican president has won the popular vote only once in three decades. As Teles writes, the failure of Nixon appointees to “transform the Supreme Court taught conservatives that electoral success was not enough.” The immensely powerful Federalist Society was founded as part of an effort to create a right-wing alternative to what conservatives saw as the dominance of legal liberalism, forming a community where conservative legal philosophy could be debated and developed, from which could emerge activists, attorneys, and judges who would ultimately shape the law and the courts. In short, a movement.

Take Clarence Thomas. Then-President George H. W. Bush chose Thomas in part to shore up his right flank in the aftermath of his appointment of Justice David Souter, who would end up siding more often with Democratic appointees. In that respect, Thomas has not disappointed the activists who ensured his placement on the Court; he called for Roe v. Wade to be overturned after less than a year on the bench. As Jeffrey Toobin writes in The Nine, when Sandra Day O’Connor retired, in 2005, the conservative activist Manuel Miranda began warning George W. Bush against appointing his attorney general, Alberto Gonzales, to the Court. “It’s really no more Souters and no more Kennedys. And that does not add up to an appointment for Gonzales,” Miranda wrote. Toobin adds that Miranda “helped popularize the devastating quip ‘Gonzales is Spanish for Souter.’” The point here is as clear as the Caribbean in the summer: Only justices who will reliably ensure the outcomes desired by the conservative movement can be appointed.

By “no more Kennedys,” Miranda meant Anthony Kennedy, a conservative justice like O’Connor who would occasionally side with Democratic appointees in big cases. Samuel Alito, Bush’s chosen replacement for O’Connor, had worked in Ronald Reagan’s Justice Department, where, in a 1985 abortion-rights case, he wrote a memo advising that “we should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.” Alito isn’t the only Supreme Court justice with a paper trail that illustrates long-held political views; as a young attorney, Chief Justice John Roberts wrote a memo complaining that the Voting Rights Act’s anti-discrimination provisions were too strong, and then gutted them in an opinion as chief justice without ever describing what part of the Constitution they violated.

The public is meant to look at these justices’ records on abortion and voting rights and assume that it is just a coincidence that their legal reasoning lines up with their policy preferences.

The day Thurgood Marshall retired, he issued a furious dissent to a decision that strengthened the death penalty. “Power, not reason, is the new currency of this Court’s decision-making,” Marshall wrote, dissenting from the majority opinion in Payne v. Tennessee. “Neither the law nor the facts … underwent any change in the last four years, only the personnel of this court did.” The same is true of every precedent overturned by the Roberts Court, from voting rights to labor law.

The conservative movement seems to have secured the Court for a generation at least, but that is insufficient. The right-wing justices also demand their decisions be seen as the outcome of dispassionate legal reasoning, not partisan warfare. They do not want the legitimacy of their proclamations, or the institution itself, questioned to the point where their liberal counterparts might consider paths as drastic and radical as the ones they took to get here. They wish to be admired and celebrated as the sagacious intellectual giants they believe themselves to be (Serwer 1-3)

Justice, as we’re frequently told, is supposed to be blind. But court seats have never been filled by blind picks. “A judge is a lawyer who is a politician who has a friend,” Judge Paul Leahy once told his then-clerk Floyd Abrams, piercing his way to the truth. Liberal presidents pick liberal nominees and conservative presidents pick conservative ones. It’s built into the system. Filling the Supreme Court with partisan nominees is one of the reasons parties campaign so hard to win the presidency!

After almost two centuries of decrying partisan courts, why can’t we accept the Supreme Court has always been and always will be a political playground? “Partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments,” writes historian Rachel Shelden of the 19th-century court. “Most nominees had served in federal, state or local political positions,” she continues. Back then, Senate majorities often declined to confirm or even consider nominations by presidents from the opposing party on political principle. In 1800, the lame-duck Congress of Federalists went so far as to delete one seat from the Supreme Court to block President Thomas Jefferson, who was from an opposing party, from filling an opening. As everybody knows, in the early 1930s, President Franklin D. Roosevelt affirmed the political nature of the Supreme Court by attempting to recast its majority by expanding the court (“court-packing”). Some of today’s liberals, displeased by the Republicans’ 6-3 dominance of the court, want President Joe Biden to pack the court.

You don’t find Supreme Court justices at the Schwab’s soda fountain. Most Supreme Court justices come up through partisan politics. John Roberts worked for Presidents Ronald Reagan and George H.W. Bush. Elena Kagan was a President Bill Clinton hand. Neil Gorsuch and Brett Kavanaugh labored for President George W. Bush. The striving begins in law school, where young aspirants find politically connected legal mentors and join organizations like the Federalist Society, where future Republican Supreme Court justices are groomed. The big sort goes on as aspirants campaign for clerkships and then judgeships, join politically connected law firms and make themselves known to power brokers they hope will someday help them reach the high court (Shafer 1-2).

Asked to name a famous Supreme Court case, many Americans would probably initially think of three that are the best known for expanding the constitutional rights of individuals: Brown v. Board of Education, which said children have a right to attend desegregated schools in 1954; Roe v. Wade, which said women have a right to have abortions in 1973; and Obergefell v. Hodges, which said gays and lesbians have a right to get married in 2015.

These landmark decisions helped to create a political mythology of the Supreme Court as an institution that has always protected the rights of Americans. However, the politicization of the courts magnified by President Trump and Senate Republicans has ironically highlighted a truth often ignored: The nation's highest court is inherently undemocratic.

Since the election, Trump has made it clear he believes the court and the three justices he appointed — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — should deliver an electoral victory for him. This is despite the fact that Joe Biden won with 306 electoral votes and by a margin of more than 7 million votes.

Not only will the court have the power to block the policy agenda of a popularly elected president, but the very process of choosing justices has become widely undemocratic. Republicans have won the popular vote only once since 1988, but they have appointed six out of the last 10 justices. The senators who voted against Barrett represent 13.5 million more people than do the senators who voted for her.

despite widespread faith in the Supreme Court, the institution has not always stood on the side of expanding individual rights and democracy. Brown v. Board overturned Plessy v. Ferguson, which found segregation constitutional six decades before. Korematsu v. United States upheld the internment of Japanese Americans during World War II. Buck v. Bell, a 1927 ruling that's never been technically overturned, upheld forced sterilization of those considered "feebleminded."

For its part, the court under Chief Justice John Roberts has seriously weakened democratic rights. Shelby County v Holder gutted the Votting Rights Act and ushered in a new era of voter suppression since 2013. Citizens United v. FEC has made it difficult to effectively regulate campaign financing for the past decade. And last year's Rucho v. Common Cause said federal courts had no business placing limits on partisan gerrymandering.

Ultimately, Democrats should make the argument that in a democracy the will of the majority should not be so wholly subjected to nine unelected officials. (Scofield (1-2).

even before the current gaggle of right-wing legal operatives took over, the court was rarely a democratic bastion of justice and equality. Rather, in its 233-year history, members have most often served as tenacious protectors of wealth, property, privilege, and the corporate order, fending off the egalitarian aspirations and demands of riffraff like you and me.

Today’s six-member super majority has surrendered all claim to being an impartial moral force for blind justice. Instead, the GOP’s small network of corporate and right-wing operatives has painstakingly fabricated and weaponized the court as its own political oligarchy. In only a couple of decades, backed by a few billionaires, these anti-democracy zealots have incrementally been imposing on America an extremist political agenda that they could not win at the ballot box.

Their Eureka! Moment–the startling development that opened the eyes of the moneyed elites and ideologues to the raw power they could grab by politicizing the judiciary–was the Supreme Court’s illegitimate Bush v. Gore ruling. In December 2000, that five-person GOP majority abruptly crashed Florida’s presidential vote count, storming over both democracy and judicial propriety to install George W in the White House. Appalled, dissenting Justice John Paul Stevens mocked the five, pointing out that while their trumped-up ruling didn’t really establish whether Bush or Gore won, it did make the loser “pellucidly clear: It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

One of those who helped run the court’s blatant political power play over the Florida vote was an obscure corporate lawyer who had long been an aggressive, behind-the-scenes Republican monkey wrencher pushing to restrict voting by people of color, the poor, and other Democratic constituencies: John Roberts. Shortly thereafter–surprise!–Bush elevated Roberts to a top federal judgeship, and just two years later moved him on up to America’s ultimate judicial power spot, chief justice of the Supremes.

From this lofty roost, Roberts has orchestrated an expansive political docket for the court, handpicking cases created and advanced by far-right interests. He then has manipulated precedents and procedures to produce convoluted decisions that impose plutocratic, autocratic, and theocratic domination over the American people’s democratic rights and aspirations.

To date, Chief Justice John Roberts has cobbled together slim, all-Republican majorities to hand down more than 80 blatantly partisan rulings, fabricating law that We the People have never voted for and don’t support. They include these infamous decrees:

In the Kafkaesque Citizens United dictate of 2010, the court’s 5-4 right-wing clique embraced the absurdity of “corporate personhood,” asserting that giant, autocratic corporations (paper constructs with no body, brain, breath, voice, or morality–but lots of money) have a constitutional right equal or even superior to actual persons to spend unlimited, often secret, sums of their corporate cash to dominate our elections.

Spending on elections, they insisted, is just a form of speech and is thus protected by the Constitution. (This ruling conveniently slides past the obvious conclusion that those with the most money get the most speech, meaning that “free speech” is not free at all.) Their ridiculous play on words has produced a geyser of corrupt money from huge corporations intended to install their chosen agents in high office, defeat direct-democracy ballot initiatives proposed by grassroots progressives, and–not coincidentally–further pack our courts with judges who will serve their special interests over the public interest.

While the federal judiciary has aided corporate bosses and rich shareholders for decades by chipping away at hard-won legal protections for working families, the chisel has become a jackhammer in the last few years. GOP judges routinely pound precedents, logic, truth, and the Constitution itself beyond recognition, not merely to rule against unions, but to demolish the structural pillars of labor rights and organizing.

In a 2018 case, for example, the GOP Five undermined the funding of unions by arbitrarily striking down their process for collecting dues–a practice the court itself had authorized 41 years earlier. As Justice Elena Kagan bluntly put it in her dissenting opinion, there was no reason for the court to barge into this matter of long-settled law … except that the corporate-backed Republican majority simply didn’t like the previous decision and overruled it “because it wanted to.” This was yet another open-and-shut case of five black-robed partisans supplanting America’s hallowed rule of law with their own anti-labor whim.

The Roberts Court has become the linchpin of the Republican Party’s nationwide attack on the voting rights of African Americans, Latinos, and other constituencies inclined to support Democrats. Mass-scale voter suppression depends on a compliant network of starkly partisan judges to legalize it, and the Republican Supremes have willfully made the moral stain of this suppression the indelible emblem of their tenure. In a 2012 North Carolina case, Roberts led the charge, glibly gutting the Voting Rights Act of 1965. To nearly everyone’s astonishment, he decreed from on high that racism was over, no longer presenting a barrier to Black voters in the South! … abracadabra–he and his four regulars merrily ruled that the core protections against voter suppression in the Voting Rights Act were henceforth null and void.

This action unleashed GOP legislatures and white supremacists to do their own thing regarding access to the polls. And they leapt at the chance. Since then, dozens of new barriers have been erected in every state covered by the Voting Rights Act. But Roberts and his right-wing cohorts have never admitted an error or apologized, instead pushing case after case to further undercut democratic access to the polls.

Since the Supreme Court’s 1973 Roe v. Wade case established that women have a constitutional right to control their own reproduction decisions, including the right to choose a safe abortion, a nay-saying minority has ceaselessly pushed to take away this right. They insist that state and federal governments–not women –can make these decisions. Today, all GOP judges on the top court are in lockstep, and they’ve now rigged the system to bring up a case that might let them impose their political will. …


Throughout Roberts’ reign, the court has sided with the Chamber of Commerce (the chief front group for US corporate giants) a staggering 70% of the time! Indeed, three members–Roberts, Samuel Alito, and Clarence Thomas–now rank among the five most-corporate-friendly justices of the past 75 years.

In a Quinnipiac survey last November [2021], more than six in ten Americans said they believe Supreme Court decisions are motivated primarily by politics, not by unbiased readings of the law. Rather than instilling a modicum of humility, however, the bad reviews have stirred embarrassing outbursts of judicial pique and vitriol. Justice Alito, for example, whined loudly last year that critics are engaged in “unprecedented efforts to intimidate the court or damage it as an independent institution.” Likewise, Justice Barrett was so stung that she felt it necessary to go public with a strained denial, pleading for the public to believe that “this court is not comprised of a bunch of partisan hacks.”

Today’s tightly knit Republican majority on the court did not come together by happenstance–and certainly not because any one of them was the brightest, most fair-minded choice in the land. All were handpicked … because they could be counted on the use their lifetime appointments to make our laws accord with the GOP’s right-wing agenda and to return to their imagined ideal of the Grand Old Days of pre-1930s corporate supremacy. This is a direct special-interest assault on workaday Americans and on the very idea of America.

Lisa Graves, a corporate watchdog and advocate of fair courts, reminds us that “the choice of who interprets the US Constitution and the laws of our land is every bit as important as electing those who make the laws in the first place.” The moneyed elites figured this out years ago and have captured the top court. Now, democracy champions must free it from their corporate grip (Hightower 1-4).

Works cited:

Hightower, Jim. “How the Right Wing Captured the Supreme Court.” The Hightower Lowdown, March 31, 2022. Net.

Scofield, Katie. “New Year, Time for New Thinking about the Undemocratic Nature of the High Court.” The Fulcrum, December 23, 2020. Net.

Serwer, Adam. “The Lie about the Supreme Court Everyone Pretends To Believe.” The Atlantic, September 28, 2021. Net.

Shafer, Jack. “Opinion: Let’s Be Real: The Supreme Court Is Political and Always Has Been.” Politico, January 28, 2022. Net.


Sunday, June 5, 2022

The Amoralists: Tucker Carlson, Part Seven; Much More Now Than a Dick


But as Mr. Trump thrashed through his first months in office, Mr. Carlson found himself with an unexpected programming challenge: Fox was too pro-Trump. The new president watched his favorite network religiously, and often tweeted about what he saw there, while Fox broadcasts reliably parroted White House messaging. No one was more on message than Sean Hannity, then Fox’s highest-rated, who frequently devoted his show to Mr. Trump’s daily battles with Washington Democrats and the media.

Newly planted in Fox’s newly vacated 8 p.m. time slot — previously held by the disgraced star Bill O’Reilly — Mr. Carlson told friends and co-workers that he needed to find a way to reach the Trump faithful, but without imitating Mr. Hannity. He didn’t want to get sucked into apologizing for Mr. Trump every day, he told one colleague, because the fickle, undisciplined new president would constantly need apologizing for.

The solution would not just propel Mr. Carlson toward the summit of cable news. It would ultimately thrust him to the forefront of the nationalist forces reshaping American conservatism. “Tucker Carlson Tonight,” the host and his producers decided, would embrace Trumpism, not Mr. Trump. The show would grasp the emotional core of Mr. Trump’s allure —white panic over the country’s changing ethnic composition— while keeping a carefully measured distance from the president himself. For years, as his television career sputtered, Mr. Carlson had adopted increasingly catastrophic views of immigration and the country’s shifting demographics. Now, as Mr. Trump took unvarnished nativism from the right-wing fringe to the Oval Office, Mr. Carlson made it the centerpiece of “Tucker Carlson Tonight.”

Stories about the threat of immigration had long been a feature of Fox. But Mr. Carlson dialed up the intensity, expertly weaving tropes borrowed from the far right into a narrative that would come to define “Tucker Carlson Tonight”: falling birthrates among the native-born, big-city crime, lax immigration policies designed to forcibly alter American society — all engineered or encouraged by a “ruling class” desperate to censor public discussion of its own failures.

He forged a relationship with Lachlan Murdoch, the Murdoch family’s heir apparent, who would become his most public supporter at Fox.From the beginning, Mr. Carlson’s on-air provocations have been part of a painstaking, data-driven campaign to build and hold Fox’s audience, according to former Fox executives and employees — an experiment that has succeeded wildly in bolstering Mr. Murdoch’s profit machine against the long-term decline in cable news subscriptions.

Today, Mr. Carlson’s influence reaches far beyond the channel he works for, or the audience that tunes in to his show. Mr. Trump is out of office and banned or suspended from the leading social media platforms. But Mr. Carlson remains, both high priest and champion of Mr. Trump’s most ardent followers. Each night, Mr. Carlson channels the passions and grievances that have replaced the Reagan-era conservatism he grew up on, from the tyranny of mask mandates to the grave danger posed by critical race theory in schools. He has aggressively defended the insurrectionists who stormed the Capitol on Jan. 6 — an attack that Mr. Carlson, borrowing the former president’s “deep state” canards, has portrayed as a false-flag operation masterminded by the Federal Bureau of Investigation. Ambitious Republican lawmakers now echo his embrace of the “great replacement” conspiracy theory, once relegated to the far-right fringe, that Western elites are importing immigrants to disempower the native-born.

Mr. Carlson has continued to promote doubt about the vaccines’ efficacy, even likening mandates to Nazi medical experiments. On the Jan. 6 anniversary, Senator Ted Cruz, the Texas Republican, set out to walk back his comments accurately calling the Trump-inspired riot a “violent terrorist attack.” He didn’t apologize to Mr. Trump. He apologized to Mr. Carlson, in a cringing appearance on “Tucker Carlson Tonight.”

Fox had always excelled not just at attracting more viewers than its rivals but at getting them to stick around longer, giving an added bump to its Nielsen ratings. To maintain its dominance in the post-Ailes era, the teams working on Fox’s evening lineup began to make wider use of expensive ratings data known as “minute-by-minutes.” Unlike the “quarter-hour” ratings more commonly used in cable newsrooms, which show how each 15-minute “block” performed, the minute-by-minutes allow producers to scrutinize an audience’s real-time ebb and flow. Mr. Carlson, determined to avoid his fate at CNN and MSNBC, was among the network’s most avid consumers of minute-by-minutes, according to three former Fox employees.

His new direction — Trumpism without Trump — took shape that summer. The lighter segments faded from view. Notably, Mr. Trump was mentioned less often than on “Hannity,” and Mr. Carlson sometimes even criticized the president, particularly when he deviated from campaign promises like building the border wall and avoiding what he had once called “stupid” wars. In private, Mr. Carlson mocked the president’s habit of calling to head off his on-air attacks. (When Mr. Trump called to pre-empt criticism of one foreign-policy move, Mr. Carlson declined the call, according to a former Fox employee who witnessed it.)

Most strikingly, “Tucker Carlson Tonight” began devoting more and more airtime to immigration and to what its host depicted as the looming catastrophe of demographic change. “He is going to double down on the white nationalism because the minute-by-minutes show that the audience eats it up,” said another former Fox employee, who worked frequently with Mr. Carlson.

He covered protesters’ attempts to pull down Confederate monuments with hyperbolic intensity; one such episode, he told his viewers, marked the beginning of “the destruction of America’s delicate social fabric.” His producers scavenged local news for under-covered items about refugees and migrants, which Mr. Carlson blew up into national news. He also began to venture farther afield than other hosts. He mocked Austria as the soon-to-be “caliphate of West Arabia.” The immigration backlash and migrant crimes in countries like Sweden and Germany became forewarnings of America’s future. “The country’s in decline,” he told viewers in the fall of 2017. He added: “Everyone knows that. It’s not racist to note that.”

Fox’s news shows began to more closely mimic its highly rated prime-time opinion shows in both tone and topic. Guests brought on to analyze the day’s stories would instead find themselves asked to respond to clips of provocative comments made by Mr. Carlson and other hosts or guests the night before — a backdoor way for Fox to inject prime-time material into the lower-rated dayside shows. …

As the midterm elections approached and Mr. Trump’s unpopularity threatened to sink down-ballot Republicans, Fox began nonstop coverage of a migrant caravan wending its way through Central America to the U.S. border. Mr. Carlson and other prime-time hosts and guests called the caravan — mostly women and children — an “invasion” dozens of times in the weeks before the election, according to tallies by Media Matters and CNN. They continued to do so even after a man walked into a Pittsburgh synagogue in late October and murdered 11 people, leaving behind a trail of social media posts railing against immigrants and Jews and applauding how people were now calling illegal immigrants “invaders.”

Shortly after the attack, the longtime anchor Shepard Smith, a beloved figure in the Fox newsroom, threw a brushback pitch at his own network. “There is no invasion,” he told viewers of his afternoon news show. “No one’s coming to get you.” Whether or not the caravan threatened America, however, it was a boon to Fox: That October, ratings were even higher than they had been right before the 2016 presidential election. Network executives soon began retooling the dayside shows, applying the approach that had worked for Mr. Carlson and his prime-time colleagues. …

Fox executives wanted to focus on “the grievance, the stuff that would get people boiled up,” said one current Fox employee. “They’re coming for you, the Blacks are coming for you, the Mexicans are coming for you.”

That February, Mr. Carlson hosted the Hungarian foreign minister, Peter Szijjarto, who touted Mr. Orban’s hard line against immigration and his efforts to encourage families to have more children. And last summer, Mr. Carlson traveled to Budapest to produce what was in effect an extended infomercial for the Orban government. In a series of segments and a gentle interview with the prime minister himself, Mr. Carlson employed a sanitized version of Mr. Orban’s Hungary to frame his own arguments about an American civilization under attack by alien forces.

Where South Africa was a warning of the hell that America could become, Hungary was a vision of the paradise that could be had by taking America back. “You don’t have to watch your country collapse,” Mr. Carlson told viewers. “You don’t have to have leaders who hate the population or divide their own people against each other.”

The day after the 2018 midterms, as darkness fell over Washington’s leafy Kent neighborhood, members of a local antifa group appeared outside Mr. Carlson’s home to protest his coverage of the migrant caravan. Standing in his driveway, yelling through bullhorns, they chanted, “We know where you sleep at night.” Mr. Carlson was not at home, but his wife, Susie Andrews, was. According to the Carlsons, someone banged on the door. Panicked, she locked herself in the pantry and dialed 911.

Mr. Carlson had lived in Washington for most of his adult life, and loved it. Two longtime friends said he was deeply shaken by the protests outside his home. “All of a sudden, it just became impossible to live there,” Mr. Carlson said in an interview last fall with Dave Rubin, a conservative YouTube personality and occasional guest on “Tucker Carlson Tonight.” He added, “I felt like we were really part of the city and then, next thing you know, people are showing up at the house.” He worried that “you’re going to wind up shooting somebody.” …

In March 2019, Mr. Carlson set out to buy a dilapidated town garage in Bryant Pond, Maine, where his family had owned a vacation getaway for decades. In a letter to town officials, he pledged that Fox would install a state-of-the-art studio there. …

by the following spring, The Sun Journal reported that his new studio was complete. He put his Washington house up for sale and began living in Maine much of the year, taping “Tucker Carlson Tonight” from Bryant Pond. ...

Mr. Carlson seemed to be testing his boundaries. In August 2019, days after a 21-year-old white man killed 22 people at an El Paso Walmart to protest what he called the “Hispanic invasion of Texas,” Mr. Carlson declared on the air that white supremacy was largely a “hoax.” Even more advertisers fled; Mr. Carlson embarked on what Fox described as a preplanned vacation. While he was gone, a Fox producer named Cristina Corbin tweeted an indirect rejoinder to the prime-time star. “White supremacy is real, as evidenced by fact,” Ms. Corbin wrote. “Claims that it is a ‘hoax’ do not represent my views.”

She had not mentioned Fox’s star by name, but Mr. Carlson appeared to catch wind of her tweet almost immediately. A few hours later, while still on vacation, he called Ms. Corbin at work from a blocked number, then berated her for airing her disagreement publicly. “Shut your mouth,” he yelled, according to a former Fox executive briefed on the episode. …

When Ms. Corbin reported the incident to Fox management, Mr. Carlson denied making such a call, according to the former executive. He was soon back to explaining to his viewers how liberals and Big Tech wanted them to “just shut up.”

It was a frequent refrain on “Tucker Carlson Tonight”— and a calculated one. According to former Fox employees, Mr. Carlson and his team had learned to work the calls for boycotts and cancellation into their programming playbook. Mr. Carlson would grab third rails on race or immigration, then harvest the inevitable backlash, returning the next evening to roast his critics for trying to suppress an obvious truth. The feedback loop didn’t just drive up ratings. It boosted the audience’s loyalty to Fox, while encouraging audiences to identify with Mr. Carlson himself, now playing victim to the same forces he was warning them about. …

To compensate for the lost advertising, Fox turned “Tucker Carlson Tonight” into a promotional engine for the network itself. It replaced the fleeing sponsors with a torrent of in-house promos, leveraging Mr. Carlson’s popularity to drive viewers to other, more advertiser-friendly offerings. …

Blue-chip advertisers would never return to the show in force. But thanks in part to the large audiences he could provide for those advertisers who remained, and the premium prices Fox could charge them, Mr. Carlson’s ad revenue began to recover. Every year since 2018, “Tucker Carlson Tonight” has brought more annual ad revenue to Fox than any other show, according to estimates by iSpot. Last May, after promoting the white supremacist “replacement” theory, Mr. Carlson had half as many advertisers as in December 2018 but brought in almost twice as much money.

As “Tucker Carlson Tonight” became more toxic to advertisers, it also began featuring fewer guests who disagreed with the host, and more guests who simply echoed or amplified Mr. Carlson’s own message. It wasn’t just that liberals didn’t want to debate him, though some now refused to appear on the show, as Mr. Carlson complained during a Fox appearance last summer; Fox was learning that its audience didn’t necessarily like hearing from the other side. …

And as advertisers fled, Mr. Carlson’s opening monologue grew. Where once he spoke for only a few minutes, sometimes in a neutral just-asking-questions mode, he now often opened the show with a lengthy stemwinder, addressing his audience as “you” and the objects of his fury as a shadowy “they.” Ratings data showed that the monologues were a hit with viewers, according to one former and one current Fox employee, and by 2020, Mr. Carlson regularly spoke directly to the camera for more than quarter of the hour long show. Instead of less Tucker, the audience got more.

Mr. Trump’s [2020] defeat was the ultimate glitch in Fox’s Trump narrative, one that couldn’t be so easily spun or papered over by its prime-time hosts. Despondent Trump supporters began to look elsewhere for news, encouraged by anti-Fox tweets from Mr. Trump himself. In early December, the upstart conservative network Newsmax, which had positioned itself as even more devotedly pro-Trump, scored its first ratings win over Fox. It was a minor crack in Fox’s cable dominance — fewer than 30,000 viewers in one audience segment on a single December night in the 7 p.m. hour — but it sent shudders through the Fox executive suites. The network might shrug off the complaints of a few advertisers; losing audience to a right-leaning rival was another thing. That month, according to one former Fox executive, Rupert Murdoch delivered a message to the network’s chief executive, Ms. Scott: Clean house. …

The purge would not come until early January, as CNN and MSNBC overtook Fox, the cable-news ratings leader for two decades, and as Washington reeled from the violent, Trump-inspired effort to overturn Mr. Biden’s victory. In the intervening weeks, Mr. Carlson and other Fox prime-time hosts would pump out a steady stream of attacks on the election results, often drawing on claims of voter fraud from Mr. Trump and his new legal team, led by Rudolph W. Giuliani. …

Much as Mr. Carlson’s vast cable audience had grown to encompass the white nationalist fringe, it now drew in some of the hundreds who would go on to attack the Capitol. …

Trumpism without Trump had begun as a programming strategy. Now, with Mr. Trump gone from the White House and cut off from Twitter and Facebook, it has become a reality. Mr. Carlson, more successfully than any other figure on the right, has filled the vacuum, picking up the banner of Mr. Trump’s movement and the followers who insist he was cheated of victory. Last year, according to The Times’s analysis, nearly half of Mr. Carlson’s shows — more than 100 episodes — included segments playing down the Capitol riot, lurching into ever more fantastical terrain. Much as he once recast the country’s racial hierarchy to make white Americans an oppressed class, Mr. Carlson has inverted the story of Jan. 6 into a modern-day Lost Cause. On “Tucker Carlson Tonight,” the rioters were not aggressors; they were victims. Last June, he floated a conspiracy theory that the riot was an inside job, claiming that an “unindicted co-conspirator” in a government court filing was “almost certainly working for the F.B.I.” …

This past fall, Mr. Carlson and his team distilled the show’s Jan. 6 fantasia into “Patriot Purge,” a three-part “documentary” for the Fox Nation streaming channel. After a trailer aired in late October, two longtime Fox contributors quit in protest. Mainstream media outlets and fact-checking sites inevitably eviscerated Mr. Carlson’s work for its factual errors and dubious assertions, but that was beside the point. After starting the year with the lowest ratings in cable news, Fox ended 2021 back on top. And Mr. Carlson’s inverted, invented narrative of the Jan. 6 insurrection has become a new Republican orthodoxy: This February, members of the Republican National Committee approved a resolution calling investigations into the attack a “persecution of ordinary citizens engaged in legitimate political discourse,”censuring two Republicans who sit on a congressional panel scrutinizing the riot. “Propaganda tends to bewilder people, to confuse them when they first hear it,” Mr. Carlson observed last fall, in a monologue accusing liberals and mainstream outlets of themselves misleading the public about Covid-19, Jan. 6 and the 2020 elections. “It is so completely and obviously untrue,” he continued. “‘What is this?’ you think. And yet for that very reason, because it’s so ridiculous, so absurd, propaganda tends to be effective” (Confessore 1-12).

Works cited:

Confessore, Michael. “How Tucker Carlson Reshaped Fox News — and Became Trump’s Heir.” New York Times, April 30, 2022. Net.