October 14, 2020
Today began with a breathless story from the tabloid paper the New York Post alleging that, according to Trump’s lawyer Rudy Giuliani, Joe Biden’s son, Hunter Biden, had dropped off three laptops for repair in 2019 and had never picked them up again, and that the FBI subpoenaed the hard drives, but before turning them over the repairman had made a copy of the material on them, and he gave it to Giuliani, and it had incriminating material on it….
And yes, it’s as ridiculous as it sounds. Over the course of the day, real journalists have demolished the story, but it is still of note as news because of what its timing might mean.
First of all, the Trump campaign is in trouble. Polls show the president down by significant numbers, and the voters he has been trying to suppress are turning out in droves. Today Massachusetts Governor Charlie Baker, a Republican, issued a statement saying he “cannot support Donald Trump for President,” and the Biden campaign announced that it raised an eye-popping $383 million in September alone, a historic record which comes on top of the historic record of $364.5 million it set in August. This means Biden has $432 million on hand for the last month of the election. Dumping a story like this Hunter Biden fiction in a tabloid, which has wide reach among low-information voters, is a cheap fix for the Trump campaign. It might shore him up among those who will never see the wide debunking of the story.
Second, though, the timing of the story suggests it was designed to distract from the third and final day of Amy Coney Barrett’s testimony before the Senate Judiciary Committee in her hearing for confirmation to the U.S. Supreme Court. The hearings have not been going particularly well for the Republicans. They have the votes to confirm her, and confirm her they will, but her insistence that she is an “originalist,” along with her refusal to answer any questions on topics relevant to the present, including on racial prejudice, climate change, voter suppression, and so on, have made her extremism clear.
Democrats have hammered home that putting Barrett on the court at this moment is an extraordinary power grab, and voters seem to agree. Turning attention away from the hearings would be useful for the Republicans when voters are on their way to the polls.
And yet, Republicans are determined to force her appointment through, even though it threatens to delegitimize the Supreme Court.
To what end?
The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure.
After the war, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, the Supreme Court tried to level the social playing field between Americans through the justices' interpretation of the law. They tried to end segregation through decisions like the 1954 Brown v. Board of Education of Topeka, Kansas, which prohibited racial segregation in public schools. They protected the rights of accused prisoners to legal counsel, and the right of married couples to use contraception in 1965 (it had previously been illegal). They legalized interracial marriage in 1967. In 1973, they tried to give women control over their own reproduction by legalizing abortion with the Roe v. Wade decision.
The focus of the Supreme Court in these years was not simply on equality before the law. The justices also set out to make the government more responsible to its citizens. It required that electoral districts be roughly equal in population, so that a state could not have one district of a few hundred people with another with a hundred thousand, thus establishing the principle of “one man, one vote.”
These were not partisan decisions, or to the degree they were, they were endorsed primarily by Republicans. The Chief Justices of the Court during these years were Republicans Earl Warren and Warren Burger.
Today’s “originalists” are trying to erase this whole era of legislation and legal decisions. They argue that justices who expanded civil rights and democratic principles were engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. They say that justices in this era, and those like them in the present—people like Ruth Bader Ginsburg, who protected women’s equality before the law-- were “legislating from the bench.” They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.
Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.
As Senator Sheldon Whitehouse (D-RI), who is a member of the Senate Judiciary Committee, illustrated in careful detail at the Barrett hearings yesterday, it is no accident that Barrett’s nomination has the support of secret dark money donors. She will be the key vote to having a solid pro-corporate Supreme Court.
The Trump administration has made it clear that it favors private interests over public ones, combatting regulation and welfare programs, as well as calling for private companies to take over public enterprises like the United States Postal Service. But the New Deal government and the rights enshrined by the Warren and Burger courts are popular in America, so it is imperative for today’s radical Republicans that the courts cement their reworking of the country.
Former White House Counsel Don McGahn explained that the Trump administration wants to skew the judiciary to support its economic agenda. “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin,” he said.
The administration has backed pro-corporate judges whose nominations are bolstered by tens of millions of dollars worth of political advertising paid for by dark money. Trump's Supreme Court appointees have joined other Republican justices on the court, where they consistently prop up business interests—such as with the 2010 Citizens United decision allowing unlimited corporate money in elections—and attack voting rights, as in 2013 with the Shelby v. Holder decision gutting the 1965 Voting Rights Act.
In 2014, New York Times journalist Linda Greenhouse wrote that it is “impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”
That ideological agenda has profound implications for our society as we know it, beginning with the Affordable Care Act, which the court is slated to take up on November 10, just a week after the election. But it is not just our healthcare that is at stake. At risk is the whole infrastructure of laws protecting our civil rights, as well as our democracy.