Friday Follow-Up

Gnashing Of Teeth

Thomas shook his head. “I wouldn’t put a label on my beliefs, and I’m definitely not a member of some political party. Nowadays true ideology has vanished, replaced by fear and fantasy. The right wing wants corporate control and a return to a past that never existed. The left wing wants government control and a future that will never exist. Both groups lose sight of the essential question: How can the individual speak and think and create freely? New ideas are the only evolutionary force that will save us all from destruction.” —Spark, John Twelve Hawks

Good question from John Twelve Hawks…How can the individual speak and think and create freely? That’s a bigger question for another day. This country does need ’New Ideas’ but the rampant greed of corporations and multi-millionaires, who seem to be purchasing judges and politicians by the handful, is the topic for 2024.

Part 1.

Again, one of the most important reasons to vote BLUE is to ensure that a Democrat will have the chance to fill two vacancies on the Supreme Court.

Since penning Friday’s Dispatch, the robed ones once again upended settled law by reversing a foundational 1984 decision required courts to defer to agencies’ reasonable interpretations of ambiguous statutes, underpinning regulations on health care, safety and the environment. Chief Justice John G. Roberts Jr., writing for the majority, said that “agencies have no special competence” and that judges should determine the meaning of federal laws. Christine Pelosi, daughter of Speaker Emeritus Nancy Pelosi (D-CA), said, "Supreme Court wipes out another 40 years of precedent — this time, overruling the Chevron Doctrine that tells courts to defer to agencies’ reasonable interpretations of statutes they administer. Radical judicial activists strike again!”

Americans for Prosperity, a libertarian conservative political advocacy group in the United States affiliated with brothers Charles Koch and the late David Koch, posted an article in May with the hope (bought and paid for) that this law would be reversed and protect your freedom from an unaccountable administrative state. All in the name of CIVIL LIBERTIES.

Inside Climate News reports that now that Chevron has been overturned, the Supreme Court has placed the onus squarely on judges to interpret regulatory law, which typically involves application of science and knowledge of the latest technological advances. In a scathing dissent, Associate Justice Elena Kagan said the court had removed “a cornerstone of administrative law,” upending the structure that supported much of the federal government’s functions. Kagan also wrote that the Chevron doctrine “has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest. Agencies have expertise in those areas, Courts do not.”

Rachel Barkow, writing for the Intelligencer, penned Chevron’s central point is that when a statute leaves a particular question unanswered or ambiguous and an agency is assigned responsibility for administering that statute, the agency is better positioned to resolve the ambiguity than a court, and a court should defer to the agency’s interpretation if it is reasonable.

Even Judge Laurence Silberman, a conservative Republican judge on the United States Court of Appeals for the District of Columbia Circuit, said in a speech as early as 1989, “Chevron’s rule — that the federal judiciary must defer to an agency’s reasonable construction of a statute it is charged with enforcing, if Congress has not directly addressed the question at issue — is simply a sound recognition that a political branch, the executive, has a greater claim to make policy choices than the judiciary.” As he noted, “The agencies — even the independent ones — have superior political standing to the life-tenured federal judiciary in performing that policy making function.”

The six-justice conservative majority on the Court now stands at the ready to reverse any agency decision it does not like, unfettered by any sense of deference of the agency view. It does not take a fortune teller to predict they will favor the conservative outcomes and reject the liberal ones, for that has been the pattern of this Court. Lower-court judges will certainly keep this in mind as they review agency decisions, and conservative judges will know the Court will have their back.

Charles Pierce jumped in with “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” So instead of career scientists deciding that the E. coli convention in your pork loin makes it inadvisable to eat, some twenty-two-year old law clerk fresh out of Regent University School of Law will. Bon appétit!

He added Getting rid of Chevron was one of the golden dreams of the country’s oligarchs and the judges and lawyers in their pay. Along with Roe v. Wade, it was number one on the conservative hit parade. But Justice Neil Gorsuch, whose concurrence is chock-full of the kind of tinhorn erudition so beloved by the carefully manufactured conservative majority, has perhaps a special reason to dance on Chevron’s grave. His mother, Anne Gorsuch, was hired by the Reagan administration to run the EPA—into the ground, apparently.

From The Washington Post: Anne Gorsuch—like Reagan then and President Trump today—was a firm believer that the federal government was too big, too powerful and too eager to issue regulations that restricted businesses. As a result, she slashed the EPA’s budget by nearly a quarter and, according to a Washington Post story at the time, boasted that she had reduced the thickness of the book of clean water regulations from six inches to a half inch. She filled various departments at EPA with subordinates recruited from the very industries the agency was supposed to be regulating. By the end of her stint at EPA, Anne Gorsuch was under siege. A half dozen congressional committees were looking into allegations of mismanagement of the Superfund program, which was designed to clean up abandoned toxic waste sites around the country. The House voted to cite Gorsuch for contempt of Congress for failing to turn over subpoenaed records.

In addition to its dollar-store history, Gorsuch’s concurrence pretty much turns the concept of stare decisis into Silly Putty. Return with us now to those thrilling days of the seventeenth and eighteenth centuries, Justice Neil Gorsuch, your host.

And in that spirit, along with the cruelty that stands as a Republican and Conservative trademark ™, in a 6-3 decision, the Supreme Court on Friday ruled that forbidding people without housing from sleeping with a blanket outside — even when they have nowhere else to go — does not run afoul of the 8th Amendment’s prohibition of “cruel and unusual punishment.” Justice Sonia Sotomayor used her lengthy dissent to argue that for people experiencing homelessness, sleeping outside is like breathing outside — inherent to that status. She wrote, “The majority countenances the criminalization of status as long as the City tacks on an essential bodily function — blinking, sleeping, eating, or breathing. That is just another way to ban the person. By this logic, the majority would conclude that the ordinance deemed unconstitutional in Robinson criminalizing ‘being an addict’ would be constitutional if it criminalized ‘being an addict and breathing.’”

Part 2.

And to add some more perspective on the BIG DEBATE and why we should move past it…remember that President Obama, a highly gifted speaker, flubbed his debate with Mitt Romney in 2012. Obama said on Friday “…this election is still a choice between someone who has fought for ordinary folks his entire life and someone who only cares about himself. Between someone who tells the truth; who knows right from wrong and will give it to the American people straight — and someone who lies through his teeth for his own benefit. Last night didn’t change that, and it’s why so much is at stake in November.”

And Senator John Fetterman, Democrat of Pennsylvania, survived a disastrous debate against the Republican Mehmet Oz in the fall of 2022. He said, “I’ve been there. People lost their mind after my debate. Maybe there’s something we could learn from that.”

Rebecca Solnit wrote about the debate on Facebook: Once again people are mistaking their feelings for facts. Last night made them feel bad; they've converted that into faux factual analysis that Biden/the Democrats/everything is doomed. And running around doing their best to make that bad feeling into reality. It's like no one doing this has ever felt bad before, then found out that in a week or two you don't feel as bad, because the incident that made you feel bad doesn't loom as large.

To be honest, I don't give a damn that Biden had a cold and did a lousy job; as someone who has to get up on stages more than most of you, I know it's hard and there are off nights. Being sparkly and charismatic onstage has nothing to do with the job of president. If you want to judge his performance as president look at his presidency (and most people actually have no idea of what's been accomplished beyond a few very high-visibility things; the thousands of ways the administration has acted on, for example, climate are invisible partly because the shitty mainstream media don't really cover it, and because most people are not really paying attention anyway, which is what gives entertainment bullshit like this debate the outsized weight it shouldn't have).

And getting him elected is not just his job; it's the job of everyone who recognizes the choice at hand: the alternative is armageddon with a smirk, an end to democracy in America, a sabotage of our chance of doing anything about climate. Elections are made by widespread participation--as grassroots organizers, donors, and voters--not by one person. And your participation is not a gift to that one person; it's your work to shape the world you live in, on behalf of all of us.

She had even more to say in a follow-up post: In the wake of the 2016 election, historian Timothy Snyder reminded us with his first rule for surviving authoritarianism: "1. Do not obey in advance." I would add to that "do not surrender in advance." Do not surrender prematurely. Do not surrender maturely, for that matter. Do not surrender if there is any other option, and maybe don't surrender then, either.

Snyder continues, " Much of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then start to do it without being asked. You've already done this, haven't you? Stop. Anticipatory obedience teaches authorities what is possible and accelerates unfreedom."

I have said, “Your opponents would love you to believe that it's hopeless, that you have no power, that there's no reason to act, that you can't win. Hope is a gift you don't have to surrender, a power you don't have to throw away.” So it's interesting to see people deciding they've lost an election that has yet to begin rather than figuring out how to fight like hell for it. You would never see this kind of public defeatism from the right, and while they're bad at being human beings, they're good at strategy. I wish we didn't so often seem like the opposite.

Too, our words, our stories, creates our reality. The New York Times pretending to report and comment on Biden's age made a much bigger issue of Biden's age just like they cooked up Clinton's emails into a faux-issue that infiltrated the conversation. You all saying that the election is already lost are helping lose it. This doesn't mean that there is no trouble, and no need for change. It just means those are not grounds for surrender.

As usual, my favorite defense of keeping Biden on the ticket comes from Lee Papa: Look, Biden had a terrible night. The rasping, the confused answers, the inability to respond clearly. It was a disaster, and we don't need to sugarcoat that. But the whole thing was a disaster. It was honestly depressing that we have to contemplate Trump being reelected. What kind of stupid fucking country would elect a convicted felon with up to three trials and at least two appeals coming up? The stupidest kind, that's who. And Trump calling Biden a criminal was fucking absurd. Trump was allowed to be at the debate because he's fucking out on fucking bail. And all that criminality got almost no mention except for a single question, as if the moderators were ignoring those facts, including that Trump's a fucking rapist. How come no one is pressuring Republicans to get the convicted felon and rapist who's out on bail to drop out? We should be constantly appalled by the idea that Trump is running and he has so much support, despite his crimes. 

Frankly, that's the most degrading part of this whole fucking race, not Biden acting his age.

And HCR just posted a quick note yesterday about the Biden for the Win Card Campaign. She wrote, “To me, the commentary after the debate has been a huge wake-up call about the media. It's clearly in crisis, and something new is emerging. Pretty sure whatever comes from this moment will be a bottom-up media rather than the current corporate model. But that, of course, depends on there BEING a free press after January 20, 2025, and that means making sure people understand what is really at stake in this election.”

The Card Campaign website is an all-volunteer grassroots team dedicated to distributing a series of two-sided cards that will present verified facts about how the two main presidential candidates address issues that concern all Americans. They are sharing the templates for these cards so you can print or have them printed and then distribute them in your town.

Democrats for the win in 2024. And I’ll leave you with these final words written by Jay Kuo from his Substack:

When the Supreme Court stripped away a fundamental right to abortion in the Dobbs decision, it galvanized women voters and other pro-choice advocates across the country. Democrats, who want to restore that right, began winning in special elections and then the 2022 midterms. Abortion referenda began to prevail in unexpected places, from Kansas to Ohio, and by wide margins.

Now, thanks ironically to the Supreme Court, voters will be highly motivated to turnout for abortion rights in key battleground states, including Arizona and Nevada, that could decide the race for the White House and control of the Senate. Voters are stressed, but they are also angry and determined, and they have channeled that into decisive action and turnout.

And we can do the same in November.

And now…