July 10, 2018

SCOTUS during Reaganism is socially / culturally liberal, deregulatory, authoritarian

Another opening on the Supreme Court, another ritualistic battle between liberals and conservatives, who both keep pretending that the GOP elites are actually conservative on social and cultural issues, when they are in fact small-l libertarian (socially liberal, economically conservative). They have been that way all throughout the Reagan era, and will continue to be during this final twilight phase under Trump.

The liberal freak-out always proves to be a false panic about Christian theocracy, just as much as the cultural conservative gloat-fest always proves to be a false hope for the same.

The primary goal of the Reagan coalition has been to undo the New Deal / Great Society regulations on business, as well as that era's checks on institutions of armed authority. This reflects the interests of the sectors that control the GOP -- material ones like energy, agriculture, and law enforcement -- whose interests were sacrificed during the New Deal era in favor of workers, blacks, and the accused. They have used their status as the dominant coalition to carry out this agenda in the executive, legislative, and judiciary branches, all of which they rapidly captured in the 1980s.

The sectors that formed the dominant coalition of the New Deal era -- finance and the military -- were not weakened by strengthening labor unions or giving more civic participation to blacks. Checks on military authority would have harmed a key member of their coalition, so the government in all three branches tended to shy away from constraining the military, provided that sector wielded authority primarily in foreign affairs. That allowed the non-military members of the coalition to crack down on domestic armed authorities like the police, who were more Republican-leaning (especially with Nixon's focus on law-and-order).

On social and cultural issues, the Democrat coalition of the New Deal / Great Society was moderate to conservative, reflecting both the mixture of sectors in their coalition -- liberal financiers, but conservative military leaders -- as well as their electoral base of the working class, who are more conservative on such issues than the socially permissive elites. That applied to Supreme Court decisions as well as executive and legislative measures taken to censor profanity, gore, pornography, etc., from popular culture during the Midcentury.

With the dismantling of the populist New Deal by the neoliberal Reagan revolution, the Republican-led government has pushed liberal causes in the social and cultural domains -- flag burning, abortion, pornography, sodomy, gay marriage, and so on. I'm leaving out a detailed survey of the cases themselves, which I may take up in another post, and looking at the sociological big picture here.

Advocating for free market fundamentalism leaves nothing sacred, nothing out-of-bounds, and shifting toward an electoral base of upwardly mobile aspiring elites means assuring them that their liberal priorities on social issues will remain safe. Social conservatism is for those proles who vote Democrat, not for yuppies who vote Republican.

Occasionally the GOP legislature does try to throw some breadcrumbs to the social conservatives in its base, but that's where the Reaganite Supreme Court steps in to remind everyone that the main priorities are deregulating the material sectors of the economy, including law enforcement, and doing whatever it takes to help Republicans win elections when their goals are so deeply unpopular. All that those socially conservative breadcrumbs would do is alienate yuppie swing voters, who are a crucial bloc of the party's slim electoral base.

This function of the Court will remain so even with the appointments by Trump, whose list came straight from the Federalist Society -- a gatekeeper for career-climbing Republican lawyers, founded at the dawn of the Reagan revolution in 1982.

At the same time, as a disjunctive, end-of-an-era president, Trump may end up appointing someone who will switch sides under the upcoming populist re-alignment, after the Bernie revolution dethrones the Reaganites. That would be akin to the disjunctive Hoover, at the end of the pro-business Republican era of the early 20th C, appointing Owen Roberts in 1930. He began pro-business, but after several years of the Supreme Court striking down New Deal legislation, he decided to join the pro-New Deal side in 1937, to prevent FDR from packing the court instead to get his programs upheld. That was "the switch in time that saved nine".

Roberts only received the nomination because Hoover's first pick, John Parker, was rejected by the GOP Senate for his anti-union views (upholding "yellow-dog contracts," whereby workers agree not to join a union as a condition of getting hired). Not a good look in the middle of the Great Depression.

It's still possible that Trump will get another pick, choose a deregulatory business cuck in the middle of the imminent deep recession, and the Senate will be spooked enough to reject him and require someone with a populist streak. (Roberts was famous for investigating the Teapot Dome scandal of the GOP Harding administration.) That will be especially true if one of the liberals, Ginsburg or Breyer, kicks the bucket or retires. Trump and the GOP Senate may be forced to replace a Clinton appointment with someone who splits the difference -- socially and culturally conservative, but pro-labor and pro-regulation.

When Kennedy retired, I argued for making populism, rather than social liberalism, the basis of opposition to whichever Federalist Society guy Trump ended up selecting.

Of course, it's also possible that the upcoming re-alignment will be more like the Civil War than the New Deal, given the soaring levels of partisan polarization (like the Civil War, unlike the New Deal). That might lead the Bernie revolution to re-shape the Court by re-jiggering the circuit boundaries, and adding or subtracting justices, just as the Lincoln coalition did to dethrone the Jacksonian Democrats:

Between 1862 and 1869, Congress thus re-arranged the federal circuits to curb southern influence, added a tenth Justice to uphold Union war policies, and reduced the size of the Court to thwart an antagonistic president. Taken together, these measures constituted a mostly partisan attempt to shape the structure and personnel of the Supreme Court: the first Court-packing plan.


  1. This shows that deregulation is the sole unifying item for the Reaganite voters.

    Social-cultural conservatives can find more conservative positions taken by the New Deal SCOTUS, like censoring obscenity and winding up with a broader rather than narrower definition by the 1973 Miller v. California decision.

    Or even when they punted on the issue of flag burning, the dissent from liberals like Warren and Fortas was that the Court should have ruled directly on the burning of the flag, rather than speaking bad words about it. And they said they would've upheld a ban on flag-burning, since the flag deserved special protection as a symbol of the nation!

    Libertarians are wary of the pro-police state and surveillance state apparatus that the Reaganites have unleashed, and libertarians obviously prefer the Courts of the New Deal era for civil liberties vis-a-vis the armed authorities (Miranda warnings, public defenders for the poor, etc.).

    The only thing that they, along with the Chamber of Commerce, agree on, is that government should stay out of regulating business.

    Not staying out of "the private sphere," since social conservatives want govt regulation of marriage, schools, sports leagues (which they feel to be public, not private clubs), and the like, to reflect their values.

    And not "government is inherently bad" a la libertarian ideologues, since the Chamber of Commerce still wants a strong government to be able to take resources from one group and give it to another -- and they're not going to be able to de-industrialize the American economy, and re-build factories in cheap labor colonies, without a government mediator to get that trade deal done. China, Mexico, and India will not just meet with one or more US corporations, but with a govt representing their interests.

  2. It's also what the opposition party has least posed a threat to, since that's a sacred cow in the Reaganite era. Dems can offer social-cultural liberalism, or criminal justice reform. But not re-regulation -- or by implication re-taxation, to pay for the new / stronger govt regulatory activities.

    But as later generations have only known the shithole country that deregulation has produced, that agenda loses sacred status. For the Silents and Boomers -- the Me Gen of the Seventies -- free market fundamentalism and deregulation was something they had to wage war in order to win. It's a sacred prize that they'll never give up, no matter what.

    Even if they take it for granted in these geriatric years of the Reagan revolution, all it takes is one Democratic Socialist dethroning a high-ranking Establishment tool in New York City, and they've thrown themselves into a panic.

    Not to mention when President Trump asks "Why don't we just have Medicare cover everybody?" while spitballing replacements for Obamacare with the GOP in Washington.

    For the post-Boomer generations, certainly by the Millennials, deregulation will always be taken for granted, and felt to be mundane -- not a sacred prize won after vicious battle to be protected at all costs. And look at what the hell it's brought!

    Something that is not only mundane but destructive? Get rid of it ASAP!

    That will be the central theme of the Bernie re-alignment -- re-regulation and re-taxation, leading to re-industrialization. Some will be liberal and some conservative on the cultural BS. Some will like cops, others will hate cops. But all will want to choke the life out of the corporate cartels that have destroyed our entire society in just one or two generations.

    One bloc of those cartels had better figure out that they will be least harmed by a populist system -- those that are insensitive to a rising cost of labor and materials, such as finance -- and grudgingly get behind it, while throwing the other bloc of cartels to the mob as a sacrifice. Within "tech," purely informational Google, Facebook, and Netflix would join the banks, and throw manufacturer Apple and retailer Amazon under the bus.

    No different from the big banks siding with the New Deal and throwing the manufacturing owners under the bus. It was either that, or everyone gets blown up in a Russian Revolution right here in America.

  3. Yes, Skowronek's cycles appear to have more to do with economic regulation rather than anything else. It was FDR who began greater economic regulation with the New Deal, and Jimmy Carter slightly deregulated, while Reagan greatly deregulated.

    At the beginning of the disjunctive period, there is some kind of economic crisis which sours the public on where the economic trends are heading, whether it be greater regulation or deregulation. The early 70s recession, which was perceived to be caused by too much regulation. Conversely, the subprime mortgage crisis, which was the result of too little regulation.

  4. That acute shock draws attention to chronic problems, making people reconsider the entire system during the period they've been living through.

    Trump got elected somewhat due to the non-recovery after the Great Recession, but mostly because that clarified how rotten the entire system of Reaganomics has been -- de-industrialization, higher ed debt with no jobs to pay it off, concentrating wealth, central bank inflating bubbles for the 1% rather than investing broadly in the population, etc.

    The Vietnam War and Energy Crisis that got Carter elected made people re-think the whole New Deal system of "guns and butter" spending.

    The Great Depression got people questioning the whole GOP system of "the business of America is business".

    And so on.

  5. As an aside, but, according to Skowronek, Trump's "God Emperor" persona is not all that unique. Disjunctive presidents often portray themselves as being invincible forces of nature, to compensate for the fact that they lack political support within their own party.

    "Like Carter and Adams, Trump reached the presidency as a loner. All three found themselves in — but not part of — a long-dominant coalition. Each marginalized party orthodoxy and made their case instead based on some inimitable, personal capacity to put things right. Trump’s “I alone can fix it” echoes Adams’s “talents (and virtue) alone” and Carter’s “Why not the best?”

    "When the old order loses political purchase, the attractions of the loner-as-leader shine brightly. But such presidents have never been able to reorder national affairs. Once in office, they appear incompetent and in over their heads. "


    Far from being a fluke, the Trump phenomenon is part of a natural process that has repeated itself throughout history.

  6. Like Trump, Carter also whined about why he wasn't getting credit for shaking up the status quo, which was such a courageous act that other weak men would never have dared to take on, etc.

    And unlike Trump, Carter was a humble guy generally speaking. Even he was overcome by frustration as his entire party cockblocked his against-the-grain agenda.

    Neither can see that they aren't getting credit because they aren't delivering the goods. Maybe 1% or 2% of what they promised -- big deal. And at the end of an era, it's too little, too late, when we voted for radical change.

    They could feel better about themselves if they realized they aren't getting credit because of the faults of their sclerotic dominant party, not necessarily themselves. But then that would be admitting how impotent they are within their own party, that they are outcasts who no one listens to unless it already served their needs. They're not strong leaders who are bending the course of history to their will.

    That's a far heavier burden of cognitive dissonance than believing that you really are welcomed by your party, are leading it into a bold new direction, but that the media and some of the citizenry are just unaware of that awesomeness, or are playing it down for partisan reasons. Then it's the fault of a bunch of petty shitheads, not the fault of your own party's elite.

    For status-strivers, it stings worse to feel rejected by the elites than by the peons and chatterers. And for the power-hungry, it stings worse to feel impotent than unappreciated.

  7. Uncanny how familiar "The Passionless Presidency" sounds, from a Carter speechwriter who became disillusioned with the admin after having worked for him since the underdog campaign that scored an upset victory. Like if Stephen Miller left next year and reflected on the doomed nature of the "Trump movement," and Trump himself, in The Atlantic:


    It's long, so I'll only quote a little from the beginning.

    Breaking from a boring prepared speech and improvising on the topic of his own qualities, especially how courageous his decisions have been:

    ' He told them of his difficulties—"It is not easy to negotiate with the Russians on a SALT agreement.... A Panama Canal treaty was not a popular thing." The Mideast arms sales were "almost impossible to resolve to the satisfaction of the American people. It took a lot of courage to make those decisions." '

    Disillusionment with the leader:

    ' Sixteen months into his Administration, there was a mystery to be explained about Jimmy Carter: the contrast between the promise and popularity of his first months in office and the disappointment so widely felt later on. '

    Not due to just the end of the honeymoon period, but to the lack of accomplishments to point to, unlike leaders from the heyday, rather than the disjunctive twilight, of the dominant coalition:

    ' He was speaking with gusto because he was speaking about the subject that most inspired him: not what he proposed to do, but who he was. Where Lyndon Johnson boasted of schools built and children fed, where Edward Kennedy holds out the promise of the energies he might mobilize and the ideas he might enact, Jimmy Carter tells us that he is a good man. His positions are correct, his values sound. Like Marshal Petain after the fall of France, he has offered his person to the nation. This is not an inconsiderable gift; his performance in office shows us why it's not enough. '

    He's a very stable genius!

    ' He is probably smarter, in the College Board sense, than any other President in this century. '

    ' He is a stable, personally confident man, whose quirks are few. '

    Outsiders (his Georgia mafia, like Trump's New Yorker crew) who were in over their heads in DC and got nothing done:

    ' But if he has the gift of virtue, there are other gifts he lacks.

    ' One is sophistication. It soon became clear, in ways I shall explain, that Carter and those closest to him to him took office in profound ignorance of their jobs. They were ignorant of the possibilities and the most likely pitfalls. They fell prey to predictable dangers and squandered precious time. '

    Loyalty to the leader himself ranking above loyalty to a higher cause (unlike what they say on the campaign trail):

    ' The second is the ability to explain his goals and thereby to offer an object for loyalty larger than himself. '

    More concerned with signaling their position on an issue than with doing the work to achieve that goal:

    ' The third, and most important, is the passion to convert himself from a good man into an effective one, to learn how to do the job. Carter often seemed more concerned with taking the correct position than with learning how to turn that position into results. He seethed with frustration when plans were rejected, but felt no compulsion to do better next time. He did not devour history for its lessons, surround himself with people who could do what he could not, or learn from others that fire was painful before he plunged his hand into the flame. '

    He's talking mostly about the individual, rather than the whole party, its elites, the sectors of society that control it, and the whole system being in a state of flux. But it's a good description of how the individual leader behaves in that disjunctive phase of the cycle.

  8. If you're interested, Skowronek has elaborated in great detail the different phases of a political era:

    "The sequence goes from “reconstructive” presidents who transform politics in their own image (Roosevelt, Reagan), followed by their handpicked successors (Truman, Bush ‘41) ; in turn they are usually succeeded by presidents Skowronek calls “pre-emptive”, who adopt the reigning orthodoxy of their parties (Eisenhower, Bill Clinton) followed by a faithful servant of that orthodoxy (Kennedy/Johnson, Bush ‘43) followed by another pre-emptive opposition leader (Nixon, Obama). The final stage is the “disjunctive” leader, who is outside their party’s orthodoxy, and that’s where we are now with Trump."



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