American democracy: An increasingly unstable complex adaptive system

Complex adaptive system

Complex adaptive system (CAS): a system that is complex because it operates as a dynamic network of interactions, but the behavior of the ensemble or the whole may is not always predictable according to the behavior of the components; examples include nations, groups of people, traffic flow, the internet, systems of government, ecosystems, financial markets, army ants, bee hives, and individual brains (discussed here before)

Consilience: agreement between different approaches to a topic of different academic subjects, especially science and the humanities; agreement among different approaches increases the likelihood that a belief supported by consilience is more apt to be real and more accurate than one based on data and analysis from a single source of research

Consilience has emerged regarding American democracy. Researchers applying CAS theory to it see that our democracy is in serious trouble. Researchers assert that a major component feeding the instability is political and social polarization and the loss of mental diversity among people in groups who self-associate and are not exposed to different facts and political opinions.

One source comments on several papers on American democracy and its status as a CAS. The papers were published together on Dec. 6, 2021 in the Proceedings of the National Academy of Science (PNAS):   

Much like an overexploited ecosystem, the increasingly polarized political landscape in the United States — and much of the world — is experiencing a catastrophic loss of diversity that threatens the resilience not only of democracy, but also of society, according to a series of new studies that examine political polarization as a collection of complex ever-evolving systems.

Ultimately, as social interactions and individual decisions isolate people into only a few intractable camps, the political system becomes incapable of addressing the range of issues — or formulating the variety of solutions — necessary for government to function and provide the services critical for society.

“The complex systems perspective demonstrates that the loss of diversity associated with polarization undermines cooperation and the ability of societies to provide the public goods that make for a healthy society,” according to an introduction by issue editors Simon Levin, Princeton’s James S. McDonnell Distinguished University Professor in Ecology and Evolutionary Biology, Helen Milner, the B.C. Forbes Professor of Public Affairs and professor of politics and international affairs at Princeton, and Charles Perrings, professor of environmental economics at ASU.

“Polarization is a dynamic process and that is what complexity theory can best help us understand,” they wrote. “As environmental and complexity scientists have shown in other contexts, diversity maintenance is critical for many systems to thrive, and often to survive at all.”

Complex adaptive systems are widespread in fields from physics and financial systems to natural systems driven by evolution and socioeconomic-political systems, said Levin, who is director of the Center for BioComplexity based in Princeton’s High Meadows Environmental Institute (HMEI).

Neurologist Steven Novella at Neurologica blog comments on this research:

What various researchers found is that when we obtain our political news from a network of like-minded people several things happen. First, the group tends to narrow over time in terms of political diversity. This happens because those who are considered “not pure enough” are ejected from the network, or leave because they feel less welcome. Further, people within the network tend to get access to less and less political news total, and the news they are exposed to is increasingly polarized. This doesn’t happen when such networks do not routinely share political news to begin with.

The core problem, therefore, seems to be the diversity of sources of information. Similar networks of people, in fact, can have a moderating effect on individual members, if the group maintains a diversity of sources of information reflecting a diversity of political opinions. Further, a healthy moderating effect is supported by individual members exploring outside the group for sources of information.

These patterns follow similar mathematical trends to other very different phenomena in other complex adaptive systems. For example, such trends tend to be non-linear, meaning the more extreme they get the more the trend accelerates. Further, there seems to be tipping points of no return. Once such information networks are radicalized beyond a certain point there may be no way back. Their models indicate that Republicans are likely already beyond this tipping point, while Democrats are rapidly approaching it.

What, then, can be done? As individuals the apparent solution is to maintain a diversity of information sources, and continue to explore for new sources. Don’t rely on any one or limited number of networks of like-minded people for your information. Further, strive to be tolerant of a diversity of opinions among your various social circles.

What can we do as a society? This is a tougher question. Some have argued, I think reasonably, that we may need to bring back the fairness doctrine in news reporting. There is also a lot of focus on social media algorithms, which seem to have automated the very effects that these researchers warn against, sucking people into an epistemic bubble of increasingly narrow and radical views.

Local depolarization vs. global polarization

A PNAS news site comments:

In the polarization studies that have been done to date, says Macy, one of the most striking insights is how much of it can be explained by the interplay of just two sociological forces. One of them is the assimilation, or “influence” effect: People who interact a lot will eventually start to think and act alike.

This effect is so strong, and so well documented in the literature, that social scientists spent decades trying to figure out why polarization exists at all—or why, for that matter, humans are divided by language, fashion, cuisine, music, folkways, and a host of other differences. Why do these divisions often endure for centuries, instead of gradually fading away as the assimilation effect seemed to predict?

A big part of the answer turned out to be the second force, homophily: people’s preference for hanging out with others like themselves. One influential study of the power of homophily was Robert Axelrod’s 1997 model of culture formation. This model turned out to anticipate today’s rural–urban split between Republicans and Democrats, as well as the self-reinforcing echo chambers that have now become familiar on Twitter and Facebook.

Recent modeling work has also yielded a second key insight about polarization: namely, the crucial role played by negative emotions, which can turn both influence and homophily inside out. Just as people can be drawn together by the influence effect, says Macy, “they can also become more different from each other through negative influence,” also known as “repulsion.” And the flip side of homophily is xenophobia, he says, “which is the tendency to run away from those who are different.”

Negative emotion is obviously crucial for understanding the intergroup venom we’re seeing today. But Noah Friedkin, a sociologist at the University of California, Santa Barbara, points out that efforts to model its effects actually date back to the birth of “balance theory” in the 1940s and 1950s.

Recent years have seen a marked rise in “affective” polarization, a feeling of mutual dislike and mistrust between the two sides. The trend is illustrated in data from the American National Election Survey: People's feeling of warmth toward members of their own party (green) has held steady since 1980, whereas their feelings toward members of the other party (purple) have dropped. The difference (black) is a measure of affective polarization.

But just about everyone in this field is considerably less optimistic about proposals to reform social media. For one thing, it’s not clear how effective any such reforms would be. Even though Facebook, Twitter, YouTube, and other platforms are widely viewed as vectors for misinformation and employed as partisan echo chambers, researchers are still arguing about how much they actually contribute to polarization. According to some studies, in fact, the algorithms that determine what users see in their feeds are just bit players; most of the online divisions come from people sorting themselves the way they always have, through “birds-of-a-feather” homophily.

For another thing, the reforms could easily backfire. In 2018, for example, Bail led a team that tested a frequently proposed idea for opening up the echo chambers. They paid more than 1,600 Republican and Democratic Twitter users to follow bots that would periodically show them tweets from figures in the opposite party. “The hope was that this would lead to moderation,” says Bail. But in fact, he says, people mostly just recoiled from the discordant information. “Nobody became more moderate,” he says. “And Republicans, in fact, became significantly more conservative.”

That is sobering news. It seems that the Democrats are polarizing, presumably significantly or mostly in response to Republican polarization, which has been building for decades as social changes became increasingly unpleasant for what appears to be most or nearly all conservatives. When a CAS like American democracy becomes too unstable, it enters a period of chaos starting at a bifurcation point. The end result is unpredictable. Some form of authoritarianism, autocracy, fascism, plutocracy, kleptocracy, laisses-faire capitalism, and/or Christian theocracy could be plausible end results and the start of a new period of equilibrium. Far less plausible outcomes would seem to be true socialism, communism or anarchy. 

Since the election of the ex-president in 2016, it has felt as if the US entered a period of relative social and political chaos and unpredictability, which continues today. However, that is just a personal observation.

Other information source: Political sectarianism in America, A poisonous cocktail of othering, aversion, and moralization poses a threat to democracy, 2020

Question: Do CAS research results indicating increasing instability in American democracy seem plausible, or is this merely an academic curiosity?

Bifurcation map of the CAS of population growth of an animal

(when the line splits in two, the CAS has bifurcated 

and the system changes in ways that tend to be unpredictable)

Some commentary on the Supreme Court and freedom of judges to decide

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.

We [judges] mean to accomplish what the legislature intended. . . . . The difficulty is that what the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law. . . . . For a legislature perhaps the pressures are such that a bill has to be passed dealing with a certain subject. But the precise effect of the bill is not something upon which the members have to reach agreement. . . . . Despite much gospel to the contrary, the legislature is not a fact-finding body. There is no mechanism, as there is with a court, to require the legislature to sift facts and to make a decision about specific situations. There need be no agreement about what the situation is. The members of the legislative body will be talking about different things; they cannot force each other to accept even a hypothetical set of facts. . . . . Moreover, from the standpoint of the individual member of the legislature there is reason to be deceptive. He must escape from pressures at home. . . . And if all this were not sufficient, it cannot be forgotten that to speak of legislative intent is to talk of group action, where much of the group may be ignorant or misinformed.

In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.”  ---  From An Introduction to Legal Reasoning by former US Attorney General Edward H. Levy, 1949, summarizing the concept of American Legal Realism that had been used for decades to interpret US laws and the US Constitution

US Senator Ben Sasse (R-NE): “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

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The comments below are adapted from a blog post here two days ago, Did Republican Supreme Court justices lie about abortion?. Some interesting points are made that are useful to have in mind as some context for the Supreme Court as it embarks on what is going to be years of anti-secular, radical right social engineering. That engineering will be driven by sacred Christian nationalist dogma and blind faith in laissez-faire capitalism. Republican legal reasoning in this re-engineering of American society will be obscured by smoke and mirrors that the Republican judges will falsely tell us is the only proper constitutional interpretation. 

The point is this: We are going to be socially engineered upon good and hard, whether we like it or want it or not. Republicans want it and they are now on the verge of getting what they have been paying and fighting hard and dirty for decades to get.

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Comment: Many years ago in a speech at the Manhattan Institute, a radical right rich people group in New York city, Supreme Court Justice Clarence Thomas articulated what appears to me to be what is now mainstream radical right judicial thinking about precedent or stare decisis.

Paraphrasing Thomas from memory: Of course I believe in and adhere to stare decisis. All judges do. But I will not hesitate to overturn a settled precedent if it was wrongly decided. Then I would not hesitate to vote to overturn it.

Unless I'm mistaken, one of the Republican's comments in his oral argument comments about the Mississippi abortion law now under review by the court clearly echoed that 'logic'. I do not think it was Thomas, but just can't remember who it was. I think it was Roberts who made this argument. He framed the question asking if a court decision was wrong from the day it was decided, like Plessy, and nothing had change in the interim, should that precedent be overturned some time later by a later court decision? The judge was clearly saying that a bad decision from the get go has little or no constitutional basis to stand on. Other arguments such as people relying on the old decision just do not matter enough to change that outcome.

Response: Sure. I say when in Rome do as the Romans do unless I don't approve of what the Romans do, in which case I don't do as they do. Wait, I think I just went full circle there. That's my response to people like Thomas. He uses the words "wrongly decided" like their meaning is self-evident. As you say, there have been decisions which clearly contradict the constitution (Plessy being one, Dredd Scott another), but this is pretty rare. More often decisions are controversial and can be defended and attacked by legal thinkers depending on their interpretations. Republicans like to pretend they have some monopoly on the "original meaning" of the constitution which can then be used as basis for evaluating all decisions. 

When things don't satisfy their self-imposed criteria, they say they are "righting the wrongs of bad decisions." When anyone else breaks from precedent they label it as "judicial activism." Their philosophy is circular, self-serving and logically crude. It amounts to claiming superior insight into the meaning of the constitution on no logical basis. Originalism is a fig leaf for their own "judicial activism." At least the legal realists admit that the meaning of the constitution is not fixed once and for all, and that there should be flexibility in light of changing social conditions, mores etc. Originalists would have you believe all "good decisions" can be easily derived from the constitution.

Also, I've never been entirely clear on how they square the 14th amendment with 1787 constitutional convention, which drew up and agreed on the original document. In my opinion, the post civil war amendments (13th (1865), 14th (1868) and 15th(1870)) were morally and politically driven revolutionary departures from 1787. Those departures were made necessary because the bad compromises in the supposedly hallowed, 'original text' of the constitution resulted in civil war. So the victors-- radical Republicans-- wrote the 3 Reconstruction era amendments), and in so doing completely changed constitutional law forever. Without the 14th Amendment, the Bill of Rights, for example, would not apply to the individual states but only the Federal government.

Add to that, the fact that the 14th Am. was used for decades not as "intended" for civil rights, but for corporate rights with phrases like "liberty of contract" designed to minimize any government regulations. The history of legal decisions is anything but an inexorable, consistent and principled march from Philadelphia lawyers in 1787 to present. The Republicans seem to have a problem admitting this, or the obvious relevance of historical changes and contexts that influence the Court. The American people should also stop going along with this pretense that somehow the judiciary stands outside of historical and political cross-currents, ideologies, intellectual fads and the like. We need, also, to see the constitution as something less than Holy Writ that issued whole from the mind of Zeus in the 18th century.

Justices ARE politicians of a kind. They're appointed by and given immense powers within the US Government. They are nominated by particular Presidents who serve as the leaders of particular parties. I think deep down most people have a sense of this. 

It's time to discuss term limits, IMO.

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One point for context is useful here. At one point, the Response referred to the "legal realists." That refers to an American legal tradition called American Legal Realism (ALR). Edward Levy laid out in his short 1949 book how this works in practice and why it is necessary for a democracy. The idea behind it is that as society and technology change, judges interpret ambiguous laws to reflect those changes. For the most part, Republicans falsely believe and argue that the only proper way to interpret the Constitution is to look at the original text. Their legal authorities refer to things like originalism or textualism, wherein technological and natural social changes are mostly irrelevant. 

The modern Republican Party generally opposes the ALR tradition of constitutional interpretation, although on some occasions, it is arguably practicing its own version of ALR. One might call it reverse ALR. Specifically, the Republican version of ALR relies on its ideology and morals to oppose social changes it dislikes, e.g., laws allowing abortion, same-sex marriage, consumer protections and equal rights for minorities.  

Acknowledgement: The Response is by PD. My sincere thanks to him for taking the time and effort to comment here. 

Questions: 

1. Is it reasonable to argue that Republican judges on the Supreme Court are more driven by political and religious ideology than Democratic judges, which tend to operate in the framework of ALR? 

2. Should judges adapt to account for social or technological changes when the law is ambiguous and the original intent of the Founders or congresses who write laws cannot be authoritatively determined?

3. Is it time to discuss term limits for federal judges? People in Congress?

Visiting Aliens might now be subjected to the whims of the Pentagon

 

New Pentagon Office Criticized as Effort to Control UFO Investigations, End Transparency

A Defense Department group will now oversee U.S. government-wide investigations into UFOs – with little hope for transparency or oversight.

American officials and analysts globally are raising alarm about a new Defense Department office that will handle the U.S. government’s examination of unidentified flying objects, warning that the move indicates the military wants to end a brief spell of transparency and shove UFO reports back into a closet under lock and key.

The Pentagon quietly announced the Tuesday night before Thanksgiving that it had formed the esoteric-sounding Airborne Object Identification and Management Synchronization Group. Working with the intelligence agencies, it serves as the follow-on to a government-wide effort earlier this year to document and analyze reports of encounters with unidentified objects – “Unidentified Aerial Phenomena” or UAPs in Pentagon jargon – predominantly from military pilots.

The new office, which reports to the undersecretary of defense for Intelligence and Security, will now oversee the entire government’s study of UFOs, focusing on sightings within restricted military airspace and will also “assess and mitigate any associated threats to safety of flight and national security,” a spokeswoman says.

The Defense Department has since justified the composition of the office as necessary to provide uniformity to the reporting process and subsequent analysis.

But some researchers characterize the Pentagon’s latest move as an “insulting” attempt to run around specific efforts by civilian organizations and leaders in Congress to exercise greater oversight over the government’s study of UFOs.

For more of the scary details:

https://www.usnews.com/news/national-news/articles/2021-12-02/new-pentagon-office-criticized-as-effort-to-control-ufo-investigations-end-transparency

Did Republican Supreme Court justices lie about abortion?

Some recent comments here imply or state that some or all of the Republican judges on the Supreme Court lied about their opinion on abortion in their Senate confirmations. Apparently some people elsewhere feel the same way. An opinion piece in the Washington Post comments:

They lied.

Yes, I’m talking about the conservative justices on the Supreme Court, and the abortion rights those justices have now made clear they will eviscerate.

They weren’t just evasive, or vague, or deceptive. They lied. They lied to Congress and to the country, claiming they either had no opinions at all about abortion, or that their beliefs were simply irrelevant to how they would rule. They would be wise and pure, unsullied by crass policy preferences, offering impeccably objective readings of the Constitution.

It. Was. A. Lie.

We went through the same routine in the confirmation hearings of every one of those justices. When Democrats tried to get them to state plainly their views on Roe v. Wade, they took two approaches. Some tried to convince everyone that they would leave it untouched. Others, those already on record proclaiming opposition to abortion rights, suggested they had undergone a kind of intellectual factory reset enabling them to assess the question anew with an unspoiled mind, one concerned only with the law.

Unfortunately, that lie was and is still enabled by the news media. Even in the face of what we saw at the court on Wednesday — when at least five of the six conservatives made clear their intention to overturn Roe — press accounts continued offering euphemisms and weasel words, about “inconsistencies” or “contradictions.”

But sometimes the right puts its purposes in the open. There was a particularly striking exchange between Laura Ingraham and Sen. Ted Cruz (R-Tex.) on Fox News, where Ingraham grew inexplicably enraged over the mere possibility that Roe might not be overturned.

“If we have six Republican appointees on this court,” she said, "after all the money that’s been raised, the Federalist Society, all these big fat-cat dinners — I’m sorry, I’m pissed about this — if this court with six justices cannot do the right thing here,” then Republicans should “blow it up” and pass some kind of law limiting the court’s authority.

“I would do that in a heartbeat,” Cruz responded.

In other words: We bought this court, and we’d better get what we paid for.

Like his Republican colleagues, that same Ted Cruz repeatedly insisted at confirmation hearings that the very idea that a Republican appointee might have a political agenda was deeply offensive to whatever fine nominee was before them. So let’s review what those justices — now treating women’s bodily autonomy with such naked contempt — had to say during their confirmation hearings.

The newest justice, Amy Coney Barrett, was already on record stating that abortion is a moral evil. But in her hearing, she insisted, “I don’t have any agenda.” Asked by a Republican senator whether it would be possible to predict how she might rule on subjects like abortion, Barrett responded: “It’s not possible.”

Then there’s Brett M. Kavanaugh, who insisted in his hearing that Roe was “settled as a precedent,” because “it has been reaffirmed many times over the past 45 years.” Sen. Susan Collins (R-Maine) emerged from a meeting with Kavanaugh and said he’d assured her that Roe is “settled law." She gave him her vote.

Neil M. Gorsuch was as pure of mind as the others. Asked whether the Constitution protects intimate personal decisions on subjects like abortion and marriage, he said, “I have never expressed personal views as a judge on this subject, and that is because my personal views do not matter.”

Confronted at his hearing with a previous written statement that the Constitution does not protect the right to abortion, Samuel A. Alito Jr. vowed that as a judge, he would “put aside” the opinions he had as a lawyer and "think about legal issues the way a judge thinks about legal issues.”

Taking the cake was Clarence Thomas, who swore he had never had a conversation about Roe. He answered a Senator’s question by declaring, “Your question to me was ... do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.”

It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.

That recitation of events makes it sound like the Republicans either lied or intended to subtly deflect from their actual feelings about abortion. 

Questions: 

1. Is it reasonable to believe that the Republican justices lied to the Senate and the American people to deceive them and get accepted as federal judges?

2. Is it reasonable to believe that the “judicial philosophy” that Republican justices bring to bear at least on political cases is one that usually produces results conservatives want, and cases are decided first on political grounds and then the legal rational is ginned up to try to make a political decision look like a legally principled decision?[1]

Footnote: 

1. As discussed here yesterday, some critics of the secrecy the Supreme Court hides behind when it decides cases believe that some decisions are made first and then the decision written to look as legally principled as it can be made to look. In a 1973 paper, two critics wrote:

Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. Only if it can be demonstrated that certain other fundamental Values are jeopardized or transgressed should secrecy continue to be the norm. We maintain that the secrecy which pervades Congress, the executive branch and the courts is itself the enemy.

 
A third reason for the failure of an opinion to depict the process may be found in the probability that judges work back from conclusions to principles rather than 

“forward” from principles to conclusions. Jerome Frank once said that this conception of the judicial process is “so heretical that it seldom finds expression.” The “so-called opinions,” he explained, “will not reveal anything remotely resembling a statement of the actual judging process because decision takes place by an intuitive flash rather than conscious application of formal logic of ratiocination.” This intuitive approach to decision making, by nature and definition, precludes full explanation of the decision-maker's experience, for it is not made up of “little bricks of sight, sound, taste, and touch.”

Radical right GOP attacks on elections continue

No, the Republican Party is not done yet passing laws to suppress votes, rig elections in their favor and undermine confidence in elections and democracy generally. All the ducks will be in line in time for the 2022 elections. The New York Times writes:

A new wave of Republican legislation to reshape the nation’s electoral system is coming in 2022, as the G.O.P. puts forward proposals ranging from a requirement that ballots be hand-counted in New Hampshire to the creation of a law enforcement unit in Florida to investigate allegations of voting fraud.

The Republican drive, motivated in part by a widespread denial of former President Donald J. Trump’s defeat last year, includes both voting restrictions and measures that could sow public confusion or undermine confidence in fair elections, and will significantly raise the stakes of the 2022 midterms.

After passing 33 laws of voting limits in 19 states this year, Republicans in at least five states — Florida, Tennessee, South Carolina, Oklahoma and New Hampshire — have filed bills before the next legislative sessions have even started that seek to restrict voting in some way, including by limiting mail voting. In over 20 states, more than 245 similar bills put forward this year could be carried into 2022, according to Voting Rights Lab, a group that works to expand access to the ballot.

In many places, Democrats will be largely powerless to push back at the state level, where they remain overmatched in Republican-controlled legislatures. G.O.P. state lawmakers across the country have enacted wide-ranging cutbacks to voting access this year and have used aggressive gerrymandering to lock in the party’s statehouse power for the next decade.

But the left remains short of options, leaving many candidates, voters and activists worried about the potential effects in 2022 and beyond, and increasingly frustrated with Democrats’ inability to pass federal voting protections in Washington.

“What we are facing now is a very real and acute case of democratic subversion,” Ms. Abrams said in an interview, adding that the country needed a Senate willing to “protect our democracy regardless of the partisanship of those who would oppose it.”  

Republicans say the bills are needed to preserve what they call election integrity, though electoral fraud remains exceedingly rare in American elections. 

G.O.P. lawmakers in at least five states have put forward legislation to review the 2020 election and institute new procedures for investigating the results of future elections.

Many of the other bills are similar to those passed this year, which aim to limit access to mail-in voting; reduce the use of drop boxes; enact harsher penalties for election officials who are found to have broken rules; expand the authority of partisan poll watchers; and shift oversight of elections from independent officials and commissions to state legislatures.

This is more clear and undeniable evidence that the republican Party is authoritarian and out to subvert elections and democracy. The authoritarian's intent cannot be clearer, despite their claims of just wanting to insure “election integrity.” Their laws target democrats, minorities, college students and poll workers. 

At this point, the situation for Democrats looks bleak. Republicans can and are subverting future elections in states where they can. All the Republican anti-election measures might be sufficient to make it almost impossible for Democrats to ever gain control of government again as it has now. Maybe a backlash among Democratic voters could increase turnout, but odds of that possibility is unclear. Democrats tend not to vote compared to Republicans, especially in non-presidential election years. 

It also need to be kept in mind that the Republicans do not need to suppress a large number of votes in Senate and Presidential races. All they need to do is disenfranchise a small number to win a close race. 

Questions: 

1. It is reasonable and evidence-based to believe that the Republican Party is (i) authoritarian (or fascist), and (ii) intent on subverting elections and public trust in them? If the answer to (i) is no, how much more and what kind of evidence is needed to draw the opposite conclusion?

2. How much responsibility each do the ex-president and the Republican Party bear for the party's turn to solidly anti-democratic authoritarianism, assuming one believes that has happened, e.g., about equal, mostly ex-president or mostly GOP?

Radical Christian legal reasoning to overturn or gut Roe v. Wade

A New York Time opinion piece discusses some of the oral arguments that the Republican Christian nationalist judges were making last week as they reasoned their way to their forgone conclusion about gutting abortion rights, probably overturning the 1973 Roe v. Wade decision in the process. They need a rationale to rely on to make their decision look like gutting abortion rights isn't political. 

A couple of key concepts about how courts decide cases helps with understanding what is going on here. 

Sorry for the length and complexity of this. This post just got away from me because I wanted to try to be very clear about how Republican Christian nationalism is working in the Supreme Court. 

Holding vs. dictum

In a court decision, the decision about the law is called the holding. Sometimes a court just states the holding without calling it the holding. The holding in the Roe case is exceptionally long, but it includes this: 

Held: . . . . . 

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term. 

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. 

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (this is the viability standard that a later Supreme Court decision relied on and that the Republicans on the court desperately want to see overturned) 

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (note the exemption, "except where necessary" . . . .)  

At the end of its decision, the Roe court added a sentence that reads, "To summarize and to repeat:" and then repeats part of 3 and all of (a), (b) and (c) from the holding. I do not recall any other Supreme Case that summarized and repeated parts of the holding. At the least, this was unusual. 

The other things that cases usually contain is dicta, sometimes a lot of it. By contrast with a holding, a dictum is not binding law. One law source defines dicta like this:

A remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case. Although dictum may be cited in a legal argument, it is not binding as legal precedent, meaning that other courts are not required to accept it.

The start of the holding in Roe v. Wade

Parts 3, 3(a), 3(b) and 3(c) of the holding protecting the right to an abortion until fetal viability, which in 1973 was at the end of the second trimester; 

the first trimester ends at week 12 and the second trimester ends at week 26;

now fetuses at age 21 weeks can sometimes be saved outside the womb, maybe marking the current line for viability 

Legal rationalization based on facts first, 

decision second based on the law & facts 

The rule of law is supposed to work in the US by a two-step process. Analysis of the facts and law goes first, and then the legal decision gets expressed in the holding. When judges are political, incompetent and/or ignorant of the law, they decide first and then work backward to build a legal rational that supports the decision they wanted to get right from the get go. Obviously, this turns the role of law from something intended to be at least semi-objective into something mostly or completely subjective. The law can be completely political when judges are motivated to be political, especially when there is complexity and/or ambiguity at play. 

Complexity and ambiguity are the playgrounds of political judges. They afford all the flexibility needed to get the pre-ordained decisions they want, while still pretending to be neutral.

As discussed here before, the US Supreme Court court operates in secrecy to generate their decisions "for obvious reasons." No judge has ever articulated the obvious reasons. The reasons appear to be either a national security or state secret or non-existent. For decades, legal observers have been criticizing the court [1] for deciding cases first and then working backward to the legal reasoning. That is the "obvious reasons" the US Supreme Court demands the decision-making process is cloaked in secrecy. 

The NYT opinion piece

The NYT writes:

There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.

First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.

Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.

“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”

“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”

In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”

But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”

In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.  

In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”  

And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?

More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.

But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.

Question: Is the NYT opinion piece merely, unjustified, over-the-top partisan whining about how the Republicans on the court are going about their business? In other words, are the Christian nationalists on the court, i.e., the Republicans, looking for ways to gut abortion rights while searching for a legal rational to do exactly what they were put on the court to do?

Footnote: 

1. That 1973 article comments: 

Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. Only if it can be demonstrated that certain other fundamental Values are jeopardized or transgressed should secrecy continue to be the norm. We maintain that the secrecy which pervades Congress, the executive branch and the courts is itself the enemy.   

A third reason for the failure of an opinion to depict the process may be found in the probability that judges work back from conclusions to principles rather than "forward" from principles to conclusions. Jerome Frank once said that this conception of the judicial process is so heretical that it seldom finds expression." The "so-called opinions," he explained, will not reveal anything remotely resembling a statement of the actual judging process because decision takes place by an intuitive flash rather than conscious application of formal logic of ratiocination. This intuitive approach to decision making, by nature and definition, precludes full explanation of the decision-maker's experience, for it is not made up of "little bricks of sight, sound, taste, and touch." 

Having made bland assertions that secrecy is absolutely essential for the performance of their tasks, the Justices have not offered a cogent explanation of the reason for the essentiality. Justice Tom Clark maintained that without absolute secrecy, decisions would become prematurely known and "the whole process of decision destroyed." But this does not explain why maintenance of secrecy must be continued after the decision is taken or why judges suffer from "judicial lockjaw. ' Justice W. J. Brennan states that the conferences are carried out in "absolute secrecy" for "obvious reasons" and avoids any further elucidation of the matter. These assertions suggest that there is in the secrecy of the Supreme Court something of a semi-holy arcanum, something untouchable on which the very efficiency of the Court's functioning depends. It is the validity of that notion that is challenged in this article.