Years When Decades Happen

Reconnecting With History, part 8

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“There are decades when nothing happens, and there are years when decades happen.”
—V.I. Lenin

A couple years ago, as we entered what, in my estimation, was the transition period between epochs. I wrote an article on my blog called The Abyss Stares Back, a catalog of the way things fell apart over the last fifty years as the American way of doing things unwound. It’s a catalog of rising regulatory burdens, rising debt, rising luxury, rising dependency, falling opportunity, and falling adaptability. It chronicles (briefly) the completely reasonable-seeming steps on the road to the crisis we are now embroiled in.

Now things are happening that mark a new chapter in that unfolding story. Hunker down for a story about how this past week could turn out to be a turning point in American history as momentous as the Bretton Woods conference.

For those of you just joining my ongoing exploration of the history of our moment, you can catch up by checking out the Unfolding the World series. You can also find earlier installments in my Reconnecting with History series here.

In the excitement over the historically unprecedented Presidential Debate last week,¹ a far more important moment flew by with only moderate fanfare, and behind it is the kind of story that no history nut can bear to pass up.

For this one, we need to start way back in the mists of ancient history, when Europe was ruled by clans of Gauls—the vast civilization whose remnants we came to call “Celts” (among other things). They possessed no written language, so what we know of them comes to us from the pen of the man who broke the back of their civilization as a way to build his own political credibility: Julius Caesar, who chronicled the conquest (and genocide) campaign in his book The Gallic Wars.

The Gauls and their daughter civilizations (Norse-Gaels, Celts, Welsh, Anglos, Scots, and some Germanic tribes) did not hew to centralized governance.² Instead, they revered chieftains who ruled by merit, rather than by divine right. They were warrior peoples who, like the horse lords of Mongolia and the Central European plain, trained in the ways of war from a young age. Both boys and girls got martial training, though, in the case of the Gallic peoples (unlike the Mongols), the men did all the war-fighting. The women were the second-level of defense, tasked with defending their homes and, at the last, being responsible for killing their children and themselves rather than being taken as slaves.

They lived in towns and villages, they practiced mutual defense, and they were tight-knit communities with wide-ranging alliance structures—so tight-knit that it took the Catholic Church nearly a thousand years and some pretty clever political-theological maneuvering to tenderize them enough to accept Church authority.

Out of this mix of village-states and city-states, which stretched from Poland in the East to Canada in the West, arose a legal tradition of dispute resolution and argumentation that, in the British Isles, eventually became the English Common Law—called “Common” not because it was easy-to-find, but because it is the law made by and for the commoners themselves. Feudal royalty, when it came, was governed by a different set of traditions involving chivalry, treaties, ethics of statecraft, rules of combat and war, ecclesiastical dictates, and a mishmash of other such things. When Feudal lords imposed rules on the commoners, it was the “King’s Law” or the “Lord’s Law.”

The Common Law is not legislated. It arises. Even now, Common Law precedents from over a thousand years ago occasionally come up in court cases. Everything else in our legal tradition is vulnerable to Common Law precedent, and this tradition of “law through precedent” animates the historical turning point that we’ve just experienced.

Judicial Activism In the Modern Age

One of the things that brought us to our current historical turning point was that holy grail of the Baby Boomer generation’s consciousness, the Warren Court.

Earl Warren was an Eisenhower appointee to the post of Chief Justice of the United States. He was what is commonly known as an “Activist Judge,” which is moderately pejorative term for a judge who holds that in the Common Law tradition, “the law” is what the courts decide it is—nothing more, nothing less. Following the Activist judicial philosophy, the Warren Court helped lay the legal groundwork for the mid-century cultural shift that marked the Baby Boomers’ salad days. Some of its most revolutionary precedents were:

Loving v. Virginia (1967), which declared miscegenation laws to be unconstitutional on Due Process and Equal Protection clauses of the 14^th amendment. It was later used as a precedent for the Obergfell v. Hodges decision which legalized gay marriage on a federal level.

Brown v. Board of Education (1954), which outlawed segregated schooling in the United States even if segregated schools were of the same quality. It did this on equal protection grounds rooted in the 14^th Amendment, and mandated (in a follow-up case) that desegregation proceed as speedily as possible, but it outlined no method for doing so. Despite the Equal Protection clause not obviously applying in a situation where the court conceded that the facilities were equal, it nonetheless held that the separation of the races was bad for America, and thus it saw fit to extend the equal protection clause to cover the issue of segregation as “inherently unequal.” In its opinion it laid the groundwork for the so-called “disparate impact” standard in Civil Rights law.³

Reynolds v. Sims (1964), which changed the way districting was done and made it difficult to draw congressional districts which were comprised largely of natural interest affinity groups (such as localities and economic classes). Doing this changed the way that both State politics and Federal politics were done, and contributed to a major leveling in regional political differences over the remainder of the 20th century. It also served to squeeze voices out of the national conversation that weren’t broadly in line with the consensus of leadership. In concert with another decision in the same year (Wessbery v. Sanders), this decision shifted American electoral calculus from that appropriate to a republic (i.e. competing interests had to fight with one another) to one appropriate to a mass democracy (i.e. one person, one vote, with much less in the way of structural electoral protections for minority interests), and set the stage for our current brand of micro-targeted political interest group mongering. Before the decision, districts were drawn to balance urban interests against rural interests. After the decision, rural representation essentially disappeared from governmental bodies, even in states which depend economically on agricultural and mining industries.

Griswold v. Connecticut (1965), which legalized the access of married couples to contraception and information about reproduction, located a right to marital privacy in the 14^th Amendment’s equal protection clause and the 9^th Amendment’s protection of unenumerated rights.

Pierson v. Ray (1967), the ruling which established the doctrine of Qualified Immunity for law enforcement officers, which made it impossible to win a lawsuit against a cop that abuses his power unless the plaintiff can establish that the officer’s exact course of action has previously been adjudicated as impermissible.

Earl Warren was succeeded as Chief Justice by Warren Burger, a Nixon appointee. The Burger court used the Warren court’s precedent in Griswold to decide the case of Roe v. Wade. Over the course of Burger’s tenure as Chief Justice, the court’s makeup was less decidedly liberal than the Warren court, but it nonetheless carried on the Warren Court’s tradition of Judicial Activism with a more pronounced slant of reflexive deference to State actors. For example, the Burger court also extended the reach of qualified immunity to its current controversial scope.

While the most famous precedent of the Burger court was Roe v. Wade, the Burger court had some other decisions that had such far-reaching effects that they changed American culture, governance, and economy every bit as much as anything that happened on the Warren court.

The basic moral justification of the extensive judicial activism of the Warren and Burger courts was that it is the role of a judge to see justice done. It is plain as day to anyone with a smidge of American spirit that the State has no business at all telling people who to love (Loving, Obergfell), or how to plan their families (Roe, Griswold), or that the color of their skin means they need to be confined to a parallel society (Brown), or giving the minority too much chance to check the will of the majority (Reynolds, Wesserby). A judge who has the opportunity to right a wrong that the law has enabled is morally bound to find some way to do so. That goes doubly true for times when the law allows criminals to walk free (Pierson) or damages the national security of the United States by undermining its moral authority abroad (Brown).⁴

And it goes triply for regulatory agencies who protect the public from environmental damage and protect the community and the State from malfeasance by its citizens. It was this that was the basis for the 1984 foundation of a judicial doctrine known as “Chevron Deference.”

The Chevron Case

In 1977, the an amendment to the 1963 Clean Air Act created a dispute over what a “stationary source” of air pollution was. The EPA’s original interpretation of this law held that any single smoke stack was a “stationary source,” which severely disincentivized overhauls of existing power plants and other industrial works. Under pressure from industry, in 1981 the Reagan Administration’s EPA changed the interpretation of the law so that a “source” meant an entire facility, thus allowing expansion of existing industrial works without facing the heavier regulatory burden that applied to the construction of new facilities.

The National Resources Defense Council (NRDC) objected to this, and filed a suit which got the new interpretation thrown out. The Chevron corporation, who was a big loser in this matter, counter-sued, appealing the decision up to the Supreme Court.

The Court found that the original language of the statute was vague, and that in instances of doubt, the administrative agency which enforced a given regulation had broad latitude to interpret the meaning of the regulation, so long as that interpretation did not flagrantly pervert the law in question. In such instances, courts must defer to agency interpretations of regulations. This moved effectively stripped courts of their role in regulatory oversight, and excused Congress from the responsibility to pass carefully-enumerated regulations.

The Chevron case has been cited as justification for deferring to Executive agencies in complaints brought against them in over 17,000 lower court decisions and in 70 Supreme Court decisions. In the first decade or so of this century, Chevron Deference was applied in 77% of regulatory disputes that made it to court.

The Winds of Change

The collective weight of Supreme Court decisions—beginning with the Warren Court and continuing more-or-less unopposed up until the late 2010s—served to centralize power in the United States in the Executive Branch of the Federal Government to an extent previously undreamt-of in America, a country founded upon the deliberate and systematic separation of powers and interests, and the deliberate setting of these powers and interests against one another in order to prevent the kind of rapid-response tyranny that continues to be the stuff of nightmares on the European and Asian continents to this day.

By the time the Snowden revelations broke in 2012, the Federal Government had the power to interrupt any financial transaction anywhere in the world, intercept almost any communication in the world without a warrant, kill any individual in the world at any time for any reason that could be plausibly connected in the President’s mind with “national security” (including American citizens, or children attending a wedding).

And then, what started as a contrarian college club with a different judicial philosophy got a majority on the court.

This group, called The Federalist Society, is usually characterized as “conservative.” The label is close enough to accurate that it can plausibly stick, but it’s not exactly accurate—and, as we are about to see, when it comes to judicial philosophy, precision is important.

The Federalist Society is a philosophical society rather than a strictly political one. Its political focus, insofar as it goes, is on providing a check on expansive Federal power, which the founders of the Society saw as having been lost by the growing culture of judicial deference to the wishes of the Federal government over the years since World War Two.

Since the second Bush administration, Republican Presidents have tended to choose their Supreme Court Nominees from slates vetted by the Federalist Society, which has had some results that culturally conservative Republicans have (with a few major exceptions) not found particularly congenial.

Cultural Conservatives have, since the late 1980s at least, been itching for a slate of right-wing justices that would be Activists, but in their direction—they have not exactly gotten what they wanted—and the reason “why not” is down to the philosophical orientation of the Society

The judicial philosophy of the Society has often been called “originalist,” which implies that “only the original meaning of the Constitution will be considered.” However, it is much more accurate to call the Society’s philosophy “textualist” and “minimalist.”

The “textualist” part means that judges who belong to the society tend towards giving the text of a law (or of the Constitution) greater weight than the body of precedent that surrounds it, and tend to weigh precedent more heavily in cases where the law is vague, or where the precedent emerges close to times where the law was written (under the theory that the judges who set those precedents had greater access to the intent of the legislators who passed the law). “The law says X, therefore, absent compelling arguments to the contrary, the law means X,” is the basic attitude.

The “minimalist” part of this formulation means that a judge ought not introduce their own ideas into their opinions—instead, they should evaluate only the arguments, evidence, and precedents offered by the lawyers in the case at hand. It also means that the minimal available remedy should be pursued. If a case has a Constitutional component and a legal component, but the matter can be fully resolved by the legal question, then the Constitutional question should not be considered. If there exists a way to make what the judge believes is the right ruling without changing the precedent tradition, then the judge ought to take that road. This is also called “judicial restraint.”

This marrying of two distinct legal philosophies⁵ creates a situation where a judge will do as little as possible, and stick as close to precedent and the letter of the law as possible, right up until the point when she or he runs into a precedent that, in their estimation, is poorly reasoned or patently violates the letter and intent of the law.

Since 2020, five of the nine seats on the Supreme Court⁶ have been members of the Federalist Society. A further justice—Chief Justice John Roberts—has associated with the Society, but was never a member.

The results have been (and I use the term in a descriptive rather than a celebratory mode) historic.

A Battle of Philosophies

Both Judicial Activism and Judicial Restraint have long traditions in the English Common Law. The same can be said for the Textualist and “Living” law traditions, and for Judicial Minimalism and Judicial Maximalism, and for the tendency to act as part of and defer to the government and the tendency to stand apart from the government and hold it to account.

The jurisprudence of the American Supreme Court after World War Two settled fairly quickly into a consensus that favored Judicial Activism, Federal Deference, and Maximalism under a “living tradition” approach to the law and Constitution. Under this way of thinking about things, Judges are seen to have a moral duty to guide society towards righteousness and to defer to public sentiment and to government policy, as the government is, itself, nominally an expression of the will of the people. The law, therefore, is presumed to serve the people upon whom it is enforced, and the burden of proof to the contrary is high. Judges are also seen, as government officials, to be tasked with ensuring trust (both domestic and international) in the moral authority of the government, especially the Federal Government.

The results of this way of thinking can be seen in a number of the above-cited precedents. In Brown v. Board of Education, the deciding factor in the case was not that the black students had to travel longer distances than the white students to get a similar level of education (which would have been a clear violation of Equal Protection, despite the fact that free transport was provided). Instead, it was a one-two punch of an amicus curiae brief filed by the Justice Department⁷ arguing that allowing segregation to continue eroded the moral authority of the United States in leading the Cold War, and the general consensus and intuition among the majority of those outside of segregated states (as well a substantial minority of those who lived in segregated states) that segregation was wrong. The moral imperatives outweighed the obvious legal grounds available to the judges in that case.

You can also see this kind of reasoning at play in Griswold, where instead of ruling that the Governments of the United States and its constituent States did not have the constitutional authority to restrict access to medical care (a violation of Freedom of Association), or to censor scientific information (a violation of Freedom of Speech), or to dictate proper sexual morality (a violation of the Freedom of Religion and the Freedom of Conscience), or to confiscate privately owned medical equipment and information (a violation of Freedom from Unreasonable Search and Seizure). Instead, it was held to be a violation of the sexual privacy of married couples. Eschewing the obvious avenues cited above in favor of relying upon moral consensus also asserted the court’s moral authority, and while it did invoke the unenumerated rights in the Ninth Amendment, the Warren Court was (like most other Supreme Courts) often unwilling to invoke that amendment when asked to do so.

The Burger Court’s precedent of Roe v. Wade relied partly on the Griswold case, but also exhibited a more pronounced disinclination to ground itself in either precedent or tradition (which were both available). The resulting majority opinion was widely agreed by judicial scholars to be one of the flimsiest and most transparently political judicial opinions in history—an opinion reiterated from time to time in the popular press and among judicial enthusiasts by pro-choice people⁸ who were, to a person, waiting for the other shoe to drop when Roe was overturned, as it inevitably would be.

Chevron v NRDC was, on a textualist reading, perhaps the weakest and most flagrant of all the mid-century precedents, as it directly contravened longstanding Common Law tradition, the Federal statute governing administrative agencies, and several basic Constitutional principles (the Separation of Powers not least among them).

There are a lot of good reasons to support most of the conclusions reached in the cases above. There are even more bad reasons to support a few of them. But in terms of judicial precedent, when the governing philosophy on the court changes, something breathtaking happens.

A Change in Ages

The judicial reasoning of an activist consensus that, by steps and stages, unmoored itself from textual and precedental tradition is incredibly vulnerable to re-litigation.

In the Common Law tradition, precedent itself is not enough to create a bulwark of tradition. The reasoning of the precedent must also stand up to the scrutiny of later generations. Careful judicial reasoning is one area where the Federalist Society tends to walk away with all the marbles—as it did this week.

The free hand offered by the doctrine of Chevron Deference eventually emboldened Executive Agencies to the extent that they started inventing their own laws from whole cloth.

As a result, the Administrative sub-branch of the Executive Branch of the Federal Government effectively received legislative power, and over the next forty years the power of the Federal bureaucracy grew without check or restraint under the idea that the administrative agencies were staffed by experts who knew far more about what they were doing than Congress ever could. The question of incentives or political commitments within the bureaucracy never really came up outside of dissident intellectual circles.

Because the Second Amendment fan community has a very loud voice, lots of attention has been paid to the ATF’s use of Chevron to cover its ever-changing rule-stack, but the prolific and rather creative rule-making habits of the EPA, the USDA, the NTSB, the NRC, the NSA, and many of the other Executive Agencies over the past forty years has had far reaching effects.

They have, for example, effectively stopped the domestic development and deployment of nuclear power and have begun to disincentivize Natural Gas while incentivizing the use of coal, solar, and wind (all of which are much more polluting by every single metric but one—radioactivity, on which only coal can claim the crown for “most polluting fuel source”).

Technological stacks from decentralized internet to encryption to cryptocurrency to digital assets to nearly-free communications to secure and transparent voting to personal genomics to flying cars (no, I’m not kidding) have all been curtailed, killed, or pushed into the hands of well-monied established players.

Through the corporate-to-regulatory-to-corporate revolving door, the capture of regulating agencies has enabled massive extra-legislative pressure on small farmers to shut down or sell out to agricultural megacorps.

And, most perversely, with Congress relieved of the burden of passing laws and standing to public accountability, activist groups and corporate lobbyists have been able to quietly infiltrate the Executive agency’s rule-making apparatus and re-task the entire federal government toward their own empowerment and enrichment.

The situation finally reached what would prove to be a head in 2013, when the National Marine Fisheries Service (NMFS) started requiring fishing companies to pay for Federal employees to ride on their boats in order to ensure compliance with all NMFS regulations.

The 1976 Magnuson-Stevens Fishery Conservation and Management Act, upon which NMFS was improvising, gave the NMFS the right to assign minders to the boats—but it didn’t give them the power to force the boat owners to pay for the privilege of being thusly policed.

A New Jersey-based family fishing company filed suit in 2020, arguing that the NMFS didn’t have the authority to charge them for Federal monitoring services.

After a tortuous few years, the case made it to the Supreme Court, where history changed directions in its tracks.

The Supreme Court of the United States didn’t just rule in favor of the Plaintiff, it threw out the Chevron Precedent with these words:

Chevron is overruled.

With those words, a dispute about fishing enforcement upended everything we’ve come to understand about how government works for the last forty years.

And here’s the fun part:

This wasn’t a Constitutional decision. The decision instead held that the Chevron precedent violated the 1946 Administrative Procedures Act—a law which the Burger court decided to ignore outright.

The effects are far reaching. As venture capitalist Balaji Srinivasan explains here, the result of this ruling could well reshape the world every bit as much as did the New Deal.

And, if George Friedman is correct in the central argument of his book The Storm Before the Calm,⁹ those three words may just mean an economic bonanza and a golden age for the United States that will make the economic expansion of the Pioneer Era look like kindergartners playing with Monopoly money.

There is, of course, a possibility that it won’t have that kind of impact—there are a lot of other moving parts in play—but at the very least, this decision will force a stabilization in the regulatory environment, and also make it just a little bit harder for a sitting President to weaponize the Executive agencies against his political enemies.

The Battle for Supreme Court Supremacy

The essential difference between Federalist Society judges and Activist judges is, at bottom, the question of procedural correctness. The most onerous law you can think of, so long as it is passed according to the rules and signed into law, and so long as it does not violate a Constitutional provision in a way that a good lawyer can argue, will always (or almost always) be ruled “legitimate” by a Federalist Society judge.

On the other hand, an Activist Judge will happily disregard all of that on the flimsiest of pretexts in favor of doing what he or she sees as the morally correct thing.

In other words, the Federalists see procedural correctness in law as creating the correct environment for the system to reach the most moral conclusions, while the Activists see the procedural demands of the law as an obstacle worth sidestepping in order to do the right thing.

Because of this difference, those who believe that the way things have been done for the last eighty years is basically the right way are eyeing the stack of 20^th century Supreme Court precedents and realizing that most of them—or maybe all of them—are up for grabs. Because these folks tend to think of the law in political and moral terms (rather than in legal ones), they imagine that a continued court majority of Federalist Society members is a harbinger of a slide towards a theocratic fascist state, where it is not unelected experts, but unelected lawyers (i.e. judges) who have the final say in the rules that govern us. To support this fear, they point (not without justification) to Project 2025, a policy document by social conservatives in Trump’s camp that aims to do a number of things, some of which anyone to the left-of-the-cultural-far-right would find objectionable (if not downright terrifying).

On the other side, you have those¹⁰ who look at the capricious and ideological nature of the precedent stack of the 20^th and 21^st century and can’t help but wonder where it was along that line that America went from a government by the people to a government for the corporations and the security state, or how equal rights for all became Federally enforced privileges for some, or how sexual and medical privacy turned into ubiquitous sexuality training in public schools.

Something, they believe, has to change—there has to be intelligible, consistent reasoning in our system of precedents to engaged with.

How can an unenumerated right to privacy be protected, but an enumerated right against property seizure not be?

How can an unelected branch of government make rules that force businesses to pay for their own destruction for the benefit of megacorps, while elected officials are stonewalled by the agencies they are supposed to oversee?

How can speech be free if the government is allowed to cow third parties into censoring and deplatforming upon request?¹¹

What are we to do if we can’t know what can and can’t be done to us?

Beneath it all is an almost hilarious irony:

The Federalist Society-dominated Supreme Court’s two biggest rulings so far—overturning Roe v. Wade and overturning Chevron v. NRDC—are not positive Constitutional precedent.

The Dobbs v. Jackson Women’s Health Organization case (which overturned Roe) merely held that abortion is not a Constitutional right—it placed no limit on the Federal government passing a law that enshrined the right to abortion (and, had it been introduced, such a law would have likely squeaked past the Senate filibusterer and been signed within days,¹² as at the time of Dobbs the Democrats controlled both Houses of Congress and the White House). The Chevron Deference rule could also be passed into legislation at any time, and a court staffed with Federalist Society judges would then rule in its favor the next time the matter came up.

The careful multi-generational campaign by the Administrative State to make itself irresistible took shortcuts that made it supremely vulnerable—and it created a flavor of political gamesmanship that has seeped so deeply into the Beltway culture¹³ that the party that claims to really value the ends it achieved is utterly unwilling to lift a single, solitary finger to patch the holes in its sinking ship.

Even more interesting, the Chevron overturn is the actually the latest in a trifeta of decisions that together change the entire environment in which the Administrative State operates. For a thorough review of how the three play together, check out this post by law professor Glenn Harlan Reynolds:

Chevron, The Supreme Court, and the Law

What Comes Next

So now you may begin to see the reason why there has been so much crowing about the upcoming Presidential election:

The Supreme Court nominations.

Four of the current seats are held by people aged over seventy years.

I live in a super-majority state. My vote doesn’t count. Those of you whose vote does count in the upcoming Presidential election have a very strange choice before you.

On the one hand, you have an incompetent quasi-outsider who says he wants a revolution but won’t ever deliver it. Despite wanting revolutionaries who could make him into a new Napoleon, if elected he nonetheless will ensure that the Federalist style of jurisprudence will dominate the Supreme Court for the next few decades.¹⁴ This bloviating tangerine weasel is unlikely to achieve much of anything else in legislative terms, will be in thrall to a deadlocked Congress, but he is happy to provide aid and comfort to conservatives of a style that harkens back to the Comstock era.

On the other hand, you have an incompetent dementia patient with rage issues who can’t reliably string a sentence together, who is not responsible enough to hold a salad fork (let alone the Nuclear Football), and whose team’s domestic agenda is every bit as culturally radical as that of the bozos on the Orange Man’s team, but in a different direction. His judicial nominees will be from the Activist camp, and he stands a good chance of securing a 5-4 majority in favor of the Activist side, which will also last for the next few decades.

I need hardly add that both of these octogenarians are happy to spend the country into the ground and bankrupt all of us in order to buy the votes and favor of their base.

Whichever way we go, it’s gonna be a hell of a bumpy ride.

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If you enjoyed this post, you may also want to check out my Unfolding the World series, a history of the current geopolitical storm rocking our world, its roots, and its possible outcomes.

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1. Yes, I mean that literally. Nonetheless, I’ve decided not to cover it, as all of the historically interesting stuff were things I already talked about in my article A Simple Moment of Weakness, earlier on in this series.

2. The exception being the Rus, but that is a LONG digression so I won’t deal with it here.

3. There were a couple other interesting wrinkles in the case, which we will address when we revisit it later on.

4. More on this later.

5. It is possible to be one of these things, but not the other. Former Supreme Court Justice Sandra Day O’Connor was a Minimalist but not a Textualist. Former Justice Antonin Scalia was an Textualist, but not a Minimalist.

6. Barret, Alito, Gorsuch, Thomas, and Kavenaugh

7. https://web.archive.org/web/20140716195401/http://blogs.reuters.com/great-debate/2014/05/14/brown-v-board-of-ed-key-cold-war-weapon/

8. I include myself in this group.

9. Read my review here (link)

10. Including most judicial nerds within the MAGA camp and many more who are decidedly outside it.

11. The Society members on the court, by the way, didn’t pounce as a united front on this one when they had the chance because the principles of its judicial philosophy prevent it from considering arguments not offered, which opened the way for the defferential activist judges to control the precedent-setting opinion, which is likely to prove disastrous in the not-too-distant future.

12. This bit about the filibusterer has been added in response to a comment by subscriber Ed Knight, which you can read at the bottom of the article. In short, when Dobbs was handed down there were enough swing-state non-MAGA Republican Senators whose seats were up for grabs in that year’s mid-terms that the filibusterer would not have stopped the bill, at least according to the Democratic analysts I was reading at the time. I did not, alas, think to bookmark the analysis at the time as I literally never expected to be writing on the topic.

13. The game works like this:
1) Find a wedge issue
2) Pretend to care about it
3) Never fix it, but always make symbolic moves toward fixing it
4) Keep the electoral base that cares about that topic on the hook forever.
Ironically, now that Republicans are getting some of what they want at the Supreme Court, their electoral turnout may fall because longstanding issues that they care about are being resolved.

14. This is not exactly a brilliantly self-interested move on his part. Recall that the Justices he appointed have ruled against him more often than for him, both while he was in office and since he left.