The Supreme Court’s Savage Indictment of the Republican Party

Our little experiment in multiracial democracy rarely leaves an encounter with the Supreme Court unscathed, but Monday’s 9–0 decision in Trump v. Anderson—in which the justices ruled that Colorado could not keep Donald Trump off the ballot—has left a deeper wound than most. As The New Republic’s Matt Ford explained soon after the unanimous, unsigned per curiam decision was handed down, the ruling is an absolute cock-up that willfully misinterpreted the plain text of the Fourteenth Amendment, seemed to misunderstand how either the Constitution or most elections in the United States work, took up questions that hadn’t been brought before the court in the first place, and found terrible ways to answer them.

The American people began the day armed with a constitutional fail-safe that provided them with the means of keeping an insurrectionist off the ballot. By noon, the court had ruled that they weren’t entitled to that tool, that it would be up to the voters themselves to decide whether an insurrectionist can hold higher office, and that their decision was subject to review and reversal in the form of a subsequent insurrection. Seems like a bad way to run a country.

“How could the court butcher the ruling so badly?” asked Ford. “The simplest answer appears to be fear.” Fear was especially apparent in Justice Amy Coney Barrett’s admonition of the liberal trio’s fiery concurrence. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she wrote. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” It’s a bit rich coming from one of the justices whose rulings, most notably on the abortion rights front, have done a great deal to elevate that “national temperature,” and sow considerable chaos along the way.

But as New Republic contributor Jess Coleman quipped, “Things definitely tend to get messy when a political party unequivocally chooses an insurrectionist as its nominee.” It’s on this precise front that the court curiously avoided taking an obvious escape hatch: disputing that Trump had, in fact, aided an insurrection. Trump’s legal team provided that off-ramp, arguing that the former president was innocent of such treachery. Still, as Ford told me, most of the constitutional arguments that Trump’s lawyers advanced in his defense “only apply if, all other things being equal, he did participate in an insurrection.” That the Supreme Court chose to try to resolve the matter along constitutional lines suggests an admission: They believe Trump to have done the very thing that the Fourteenth Amendment forbids. From there, their mission became to backfill a rationale in support of the notion that Colorado’s remedy would cause too much pandemonium if it were to be administered.

But as they put themselves to this task, the court continued to quietly snitch out the GOP for their misrule. At one point, the court warns in its unsigned opinion of an “evolving electoral map” that could “dramatically change the behavior of voters, parties, and states across the country, in different ways and at different times,” potentially leading to the nullification of the people’s will. Here, Ford said, the court was “essentially caving to threats”—chief among them the ones raised in amicus briefs from a “coalition of Republican-led states” that darkly hinted at the possibility that “some states might exclude other presidential candidates from the ballot if Trump were disqualified.”

Naturally, it’s hard to see why anyone should fear a Republican secretary of state citing the Fourteenth Amendment in an effort to remove a Democratic candidate who had participated in an insurrection. I daresay that I am 100 percent in favor of such Democrats being barred from higher office. Here, however, the justices seem to be implying that the GOP will have reckless disregard for the law, and kick off candidates who cannot be said to have contributed to the sort of crimes that the Fourteenth Amendment inveighs against.

Indeed, we can foreclose the possibility of Democrats abusing their power in this fashion. For starters, at least one Republican secretary of state, Jay Ashcroft, had already issued such a threat, the cited reason simply being that he was upset that Colorado and Maine had moved to keep Trump off the ballot. Meanwhile, there is no such behavior among Democrats: Nikki Haley, a more fearsome opponent for President Joe Biden, was left on the ballot, untroubled by Democratic secretaries of state that might have wanted to help the Democratic candidate. (Also, it wasn’t Democrats who sent amicus briefs to the court written in the spirit of “Nice democracy you’ve got here, be a shame if anything happened to it.”)

It’s understandable that the Supreme Court would be worried about a Republican Party that doubles as a criminal cartel, because we’ve seen how, in the Trump era, they have descended into that lowly state, with one of their chief exports being the fomenting of political violence. This fact happened to be on the mind of Colorado Secretary of State Jenna Griswold as she wrestled with whether or not to invoke the Fourteenth Amendment in the first place: After the Supreme Court ruling was handed down, Griswold gave an interview on cable news where she lamented how the insurrection to which she was trying to respond hasn’t actually ended, as threats to her state election officials keep pouring in.

“We have had 38 percent of our county clerks step down since 2020,” Griswold said. “We can’t allow people who would use intimidation or threats to win that battle.” From the Supreme Court came the reply: If you don’t allow those people to win, the Republican Party might very well hurt you next.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

On May 3, 2022, Maine Senator Susan Collins greeted news of the leaked draft of the Dobbs decision with her trademark rue: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meeting in my office.” When asked for more details, Collins demurred, offering only that her statement “speaks for itself.”

What Collins said may have been literally true, in that Neil Gorsuch and Brett Kavanaugh—like all Supreme Court nominees for decades now—didn’t explicitly show their hands on major, divisive legal questions during their hearings and congressional rounds. But it was also a breathtaking dodge by Collins, one that laid bare either her profound ignorance or her mendacity—and it’s worth recalling today because Collins and her ilk are once again being put on the spot over reproductive rights, this time with in vitro fertilization.

In Glucksberg, the specific right being challenged was the right to a physician-assisted suicide. The abortion rights wrought by Roe fall into the same category. So while Kavanaugh may have been speaking in judicial code, it wasn’t that hard to penetrate. “It doesn’t take the brains of a fourth-term United States senator from Maine to figure out what this means if Kavanaugh is confirmed,” ThinkProgress’s Ian Millhiser explained at the time. “Judge Kavanaugh will be the fifth vote to kill Roe if he joins the nation’s highest Court.” As Millhiser predicted, the “Glucksberg test” was applied in precisely this fashion in the Dobbs decision.

Why rehash this history? Mainly because Collins’s prevarication two years ago is how Republicans are going to try to run the post-Dobbs gauntlet in this election year, in an attempt to evade responsibility for the terrors they have unleashed and those they have planned for the future. They will lie, and they will play dumb.

The contours of this strategy blew into wide view after the Alabama Supreme Court ruled that frozen embryos are people, throwing the future of in vitro fertilization, or IVF, in the Yellowhammer State and beyond, into doubt. Republicans in Congress rushed out statements in support of IVF, but as The New Republic’s Ellie Quinlan Houghtaling documented, their sudden interest in preserving IVF was dramatically at odds with their support for the Life at Conception Act, which “hoped to recognize fertilized eggs as children at the federal level in an attempt to ban abortions nationwide”—a measure co-sponsored by 163 Republicans in the House.

Indeed, the Alabama ruling was nothing more than a plain reading of similar laws in state law and its constitution, which enshrines fetal personhood in a similar matter. All of these various laws and legislation are the product of the same 50-year project that took down Roe, and which is straightforwardly geared toward a nationwide abortion ban.

But the contretemps raised by the ruling has amplified a schism between Republican elites who hope to choreograph a piecemeal rollback of these and other rights, and far-right firebrands outside of Washington who want to bring about this future as instantaneously as possible. As I’ve written before, this tension has led some institutional Republicans to try to “rebrand” the pro-life movement as moderate—rather than hell-bent on banning all abortions.

This “rebranding” will, in this campaign year, essentially amount to dodging and weaving. You’re going to see various GOP elites proclaiming support for exceptions and limits, but there won’t be a valid commitment to advancing any such protections. Indeed, South Carolina Republican Nancy Mace spent the week shopping for co-sponsors for a resolution that purports to support IVF, but which, as Business Insider reporter Brian Metzger notes, “doesn’t actually do anything.”(My colleague Adrienne Varkiani greeted this news like so: “A resolution that does nothing is peak Nancy Mace.”)

But what happens in Washington matters less than what happens in the states, where, The New Republic’s Greg Sargent says, “the true implications of GOP positions on reproductive rights will be harder to evade.” After all, it’s the states where the radicals hold levers of power, and their attempts to reassure voters that they’re not actually radical is proving even more ham-handed than Beltway Republicans’: This week, Alabama Republicans put forward a bill purportedly protecting IVF, which automatically repeals itself in 2025. In other words, it secures these rights only until the election is over, after which state lawmakers can get back down to the job of taking them away again.

This election year, Republicans will lie endlessly about their abortion positions. That much is certain. The question is whether political reporters will launder Republicans’ extreme positions by accepting at face value the benign, moderate things they say about reproductive freedoms—without adding the all-important context that the GOP is part of a half-century movement dedicated to a wholesale rollback of all abortion rights. That’s how you get an Associated Press story characterizing Donald Trump as some sort of champion for IVF when, given his Supreme Court picks, he’s played the biggest role of any politician in advancing the notion that frozen embryos are people. These GOP lies should be easy to decipher and expose, but as Susan Collins knows, they tend to work like a charm.

On a debate stage in 2019, former Department of Housing and Urban Development Secretary Julián Castro went there: suggesting that fellow presidential contender Joe Biden, who was 76 years old at the time, suffered from memory issues. “Are you forgetting what you said two minutes ago?” Castro needled. “Are you forgetting already what you said just two minutes ago?” Democratic elites were quick to swoop, lambasting Castro for his incivility. “That was a disqualifier, the way he handled it,” Rahm Emanuel said in the ABC spin room shortly afterward.

During that election cycle, Democrats seemed bent on eating their young; all but Pete Buttigieg were ground up in the gears even as the party changed its debate rules to allow Republican dowager Michael Bloomberg to briefly live out his youthful fantasy of running for president. By party acclimation, the septuagenarian Biden was anointed champion after the South Carolina primary. All thoughts of his age were set aside—until this year, when those same party elites were blindsided by the fact that time only moves forward. Biden had in fact gotten quite old. Then they were rocked anew by the Hur Report, which made Castro look prescient.

This fundamental truth is getting glossed over by the likes of Ezra Klein, whose recent audio manifesto in The New York Times promises that Democrats “have a better option than Biden.” It takes several thousand words of throat-clearing, but eventually Klein’s “better option” does kind of hove into view: Kamala Harris, probably, and if not her, then a warm body can be plucked from the “ton of talent in the Democratic Party right now.” And this would all get sorted out at the Democratic National Convention in August. “Could it go badly?” asks Klein. “Sure. But that doesn’t mean it will go badly. It could make the Democrats into the most exciting political show on earth.”

Setting aside the fact that the party’s current streak of passivity bodes poorly for this promise of certain electoral Barbenheimer, what Klein is talking about is a brokered convention. This idea gets raised every election cycle, usually by some desperate crank clinging to the hope that the inevitable might be forestalled, but it’s an especially strange prescription for 2024. Democrats are said to be fighting to save democracy, so kicking voters to the curb in favor of allowing a few thousand party delegates to decide the nominee is an odd look. This plan would also leave a lot of vital work to the last minute, as there would be no Democratic presidential candidate until the third week in August. From there, the Chosen One will have to spin up an entire campaign on the fly, playing logistical catch-up with a Trump team that will have had many months’ head start and which will no longer have to go up against the one politician to have ever bested him.

But I’m getting ahead of myself. Before we even arrive at that daunting task, we will have to endure several months of pre-convention party infighting as every Democrat with presidential aspirations realizes that if they fail to win the brokered convention sweepstakes and the party nominee wins in November, their Oval Office dreams will get deferred until 2032. Here, we will see the same intense rivalries of an open primary, but instead of playing out on debate stages and cleansed in the sanitizing fire of “the people deciding,” all of this internecine strife and backstabbing will take place in the media and culminate in what will likely be a chaotic convention floor fight broadcast live to the nation on prime-time television.

Naturally, one out-of-the-box solution to this problem is for Democrats to somehow coalesce around the idea of Kamala Harris as successor. Getting there would require the biggest and most influential names in Democratic Party politics to first agree to this and then mount a blitzkrieg of arm-twisting and dealmaking to bring everyone on board. This would be no mean feat, especially considering the fact that Harris has been perpetually dogged by the criticism of anonymous Democratic insiders for as long as I can recall.

Beyond the slings and arrows of outraged presidential aspirants, Biden’s removal will also open deep factional wounds within the party that the Biden presidency successfully cauterized. To his credit, Klein is aware that the president played a role in bringing about this détente. But a more detailed examination of this effort, documented in the newly released book The Truce: Progressives, Centrists, and the Future of the Democratic Party by Hunter Walker and Luppe Luppen, calls into question whether that unity can survive his absence, since so much of it was wrought on the strength of Biden’s preternatural ability to engender trust and forge surprising alliances, especially with progressives. Biden’s removal from the ticket will almost certainly sunder this truce and restart a bloody battle for the future of the party.

There is one final thing to dread in this scenario: With bickering personalities and factional bloodshed taking center stage, kicking Biden off the ticket will lock the party into an epic “Democrats in disarray” newscycle that will last until election night. I’m sorry to say this makes a certain amount of sense: Removing Biden at this point is, at bottom, a desperate act from a party that’s losing the election. For the media it’s chum in the water. And as I’ve said before, you should not count on proponents of Biden’s banishment to ratify the decision as sane or sensible after the fact, let alone provide positive coverage in return for having changed horses in midstream.

Moreover, the brokered convention scenario sets the table for a smorgasbord for the political press. Plates will brim with all of their favorite delicacies: chaos, conflict, and controversy. There will be much on the menu. You’ll have anonymous dissenters shivving Democratic decision makers in the pages of Politico; grass-is-greener bedwetters bemoaning the fact that their preferred candidate didn’t get picked; Twitter discord from all quarters mined for clicks; and the inevitable rise of a “We miss Joe Biden” faction to cluck-cluck at those who made the fateful choice. And all of this content will get stuffed into a news hole at the expense of any or all the messaging that Democrats might want to stick there.

It’s definitely possible to imagine that some candidate, free from the gerontological concerns that dog Biden, might have an advantage against Trump. This is what Julián Castro was warning about four years ago, after all. But if the party makes a switch now, the road ahead will have many points of pain and many opportunities to wear that precious advantage down. It could end up being a wash in the end, or worse. It’s definitely not going to be as easy as many proponents of this plan are willing to admit right now. But if Democrats choose to make this leap, they should make sure they do what they failed to do in 2020: peer over the edge of the cliff from which they’re about to hurl themselves, and steel themselves for the long descent.

What do Democrats need to do to win in November? The New Republic took up that question this month in a series in which some of the brightest minds offered their best advice to President Biden and his party. But in an essay mapping out the challenges Democrats face, and how to surmount them, editor Michael Tomasky wrote something that has remained lodged in my mind: “It practically goes without saying that the Democrats will do none of the things I suggest.”

I’m pretty sure that Michael didn’t intend that one line to linger the longest. But it’s borne out so far. Here at the precipice of the general election, Biden has important accomplishments to trumpet and significant errors to overcome. But he’s being served poorly by his party, which seems adrift, complacent, and inert. Republicans, by contrast, have been sharper and more savage; at the moment, they are winning.

I don’t know if Hur went about his job with partisan ends in mind, but partisan ends were served nonetheless: The report surfaced derogatory information in a way guaranteed to make news. From there, an exceedingly well-oiled GOP communications machine swung into operation. Democrats have largely responded by complaining about how the media has framed the story. Their complaints may have merits, but what matters is they’re losing.

As The New Republic’s Osita Nwanevu noted, it was a “collision of Democratic pathologies” that put Hur “in the position to shiv Biden” in the first place: “Gerontocratic politics, a culture of hero-worship that gave Garland far more respect and stature than he was ever due, and the commitment to even-handedness” led Garland to believe that the fair thing to do was put a Trump-appointed attorney in charge of the investigation. But the biggest pathology on display here has to do with the way Democrats approach the media and their extreme disinterest in competing on the same playing field as the GOP.

There are always good reasons to complain about the political press—and Republicans do their own share of carping. But Democrats too often operate as if the media they’d prefer to have—temperate and fair, dedicated to substance and nuance, committed to preserving democracy—is the one that actually exists. Republicans don’t believe that the press is a noble institution and they don’t treat its members that way. Instead, they innately understand that the political press is just a ravenous, insensate maw looking for its next hot meal of crassness, chaos, conflict, and controversy—and Republicans always come with a heaping plate.

Once the Hur report became national news, GOP electeds acted quickly and decisively to keep this new shiny ball spinning. As Brian Beutler reported in a recent newsletter, the full-court press is on: “Hur is now negotiating with his fellow Republicans on Capitol Hill over what he can testify to and when he can appear at a hearing. Those same Republicans have insisted that the Justice Department release a transcript of Biden’s interview with Hur, so they can clip and circulate any instance in which Biden’s memory failed him.” Once the GOP gets a scent of some derogatory information, they are prepared to act on it.

The Democrats compare unfavorably to their opponents’ fervent determination and preparedness. In a previous edition of this newsletter, I noted that Representative Jamie Raskin had surfaced evidence that Trump had “pocketed at least $7.8 million in payments from foreign governments during his presidency,” but that the investigation hit an impasse when the GOP took over the House. Democratic senators have a committee where they can pursue open-ended investigations, but they have no interest in advancing Raskin’s case.

And the Hur report, while mainly damaging to Biden, also happens to cast Trump in an unfavorable light regarding his own handling of classified materials. Democrats don’t seem interested in using their own investigatory powers to raise further questions or make a big stink about the matter. Beutler ruefully noted that the media didn’t “swarm to the unflattering contrast between Trump and Biden” because Democrats largely ignored it.

This is malpractice, especially when you consider how swiftly and purposefully the GOP acts on similar shreds of information. But Democrats’ aversion to playing the game in the most effective manner is bone deep. They’re ignoring a myriad of other areas where further unflattering facts can be found. What might be behind Trump’s plan to abandon NATO? What shady arrangement may lurk at the heart of the favorable treatment he’s receiving from his pet judge Aileen Cannon? Democrats don’t seem to want to fill the newshole with these discussions.

Nor do they seem to want to make daily hay of Trump’s many legal woes. They aren’t pouncing on the fact that he recently confused Nikki Haley with Nancy Pelosi. The former president has vowed to repeal and replace Obamacare. Why aren’t Democrats beating him up over that? Republicans’ similar plans to end protections for patients with preexisting conditions were a potent campaign issue for Democrats in 2018. Have they forgotten?

What do the Democrats stand for? Who are their enemies? What fights do they want to pick? Can they even answer these questions? Because while they dither, the public is forming some wild opinions about what should go in the spaces they’re leaving blank. Recent polls indicate that half of Americans think that Biden got favorable treatment from Hur in the document probe. Another recent poll indicates the public blames Biden for killing the border deal, despite the fact that Trump publicly browbeat GOP electeds into nuking it. After the expiration of the expanded child tax credit, voters who had received those benefits swung their support to the GOP, despite the fact that they were the most prominent opponents of the expansion. And majorities of voters still don’t hold Trump responsible for the repeal of Roe’s abortion protections.

Perhaps the press should be doing a better job conveying this information. I certainly harbor little affection for mainstream political reporting; there are definitely patterns of behavior among the elite media that rebound to the detriment of Democrats alone. But at a certain point Democrats simply need to shoulder the responsibility themselves instead of waiting for the media to cure itself of habits that have been entrenched for decades.

Instead, they are getting in their own way, mired in weird pathologies and maladroit tendencies, timidly waiting for nonexistent referees to come and level the playing field on their behalf. There’s no getting around the fact that Joe Biden is old and steadily getting older. It’s up to other Democrats to lend his campaign youth and vigor; instead they are supine and moribund. Watching this party execute its campaign plan—if you can call it that—you’d never suspect that it feels any urgency. But there is much at stake, and Democrats are absolutely blowing it.

The first few weeks of this young year have only resurfaced an old problem: the continuing economic havoc that’s roiling the journalism industry. Hundreds of positions have been cut at venerable institutions like the Los Angeles Times and The Wall Street Journal. Start-up concern The Messenger eliminated itself from existence, leaving behind scorched earth and recriminations. This week, TNR’s Ellie Quinlan Houghtaling dove into this rot and found much of it coming from the top, with a plutocratic ownership class that’s driving good businesses into the ground on the backs of poor choices and bad ideas.

Just about everyone in this business has had some brush with the employment grim reaper—or is glancing over their shoulders in fear of the next encounter. But every once in a while, we catch sight of the ways that journalism, with a little bit of stability and good decisions from the top, can still make a huge difference in the lives of ordinary people. And this week, we can celebrate one such example in the state of New York, where some good old shoe-leather reporting has helped lawmakers craft a new bill to crack down on one of the most costly financial crimes we face: organized corporate wage theft.

But the best thing about all that reporting is that it’s been put to very good use. As ProPublica reported this week, New York state lawmakers have proposed a battery of bills that will bring the hammer down on wage thieves by allowing state agencies to strip scofflaws of their ability to do business.

One bill, centered on the restaurant industry—where workers in New York had $52 million stolen from them between 2017 and 20201—would allow the “New York State Liquor Authority to suspend liquor licenses for bars and restaurants that the Department of Labor has determined owe more than $1,000 in back wages to their workers.” The second bill “would enable the Department of Labor to place a stop-work order on any business that has a wage theft claim of at least $1,000”; this has been an effective punishment in other cases. Finally, the third bill “allows the New York State Department of Taxation and Finance to suspend a business’s certificate of authority—which allows it to collect sales tax and conduct business—in cases where wage theft exceeds $1,000.”

Anyone who runs afoul of these new laws can get themselves off the hook using one neat trick: Pay up within 15 days! Otherwise, it’s a pretty severe punishment. But it’s one that fits a truly heinous crime, and if the past is any guide, wage thieves have prospered because of the way the law too often doles out mere slaps on the wrist.

A Popular Information report from January explains that this has been what’s missing: While the Department of Labor can penalize wage thieves, it is only empowered to impose civil penalties against repeat offenders or when it finds that the wage theft was “willful.” Consequently, penalties are only “imposed 41 percent of the time.” And when they are i