Etiquette



DP Etiquette

First rule: Don't be a jackass.

Other rules: Do not attack or insult people you disagree with. Engage with facts, logic and beliefs. Out of respect for others, please provide some sources for the facts and truths you rely on if you are asked for that. If emotion is getting out of hand, get it back in hand. To limit dehumanizing people, don't call people or whole groups of people disrespectful names, e.g., stupid, dumb or liar. Insulting people is counterproductive to rational discussion. Insult makes people angry and defensive. All points of view are welcome, right, center, left and elsewhere. Just disagree, but don't be belligerent or reject inconvenient facts, truths or defensible reasoning.

Wednesday, July 13, 2022

Convergence of Republican Party and foreign authoritarianism in democracies under attack

ACUF is the American Conservative Union Foundation

American anti-democratic authoritarians are merging 
with those in Hungary


Acknowledgement: The following is copied and lightly edited from a comment PD posted in another discussion thread yesterday. PD synthesizes complicated things extremely well into coherence. Better than me, that's for sure. I appreciate his time and effort here a great deal. This is quite timely and informative.

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Initial comment: Hungary and Poland are not the USA. Again, I'd compare us to England, Australia, Canada, and New Zealand. Maligned as the Anglo-American world, although I very much admire it.

PD's response: When I mentioned Orban's Hungary as an example of bloodless de-democratization, you said,

Hungary and Poland are not the USA.

Orban is now going to speak alongside Trump and Steve Bannon at CPAC in Texas next month. As the articles and video linked below report, the GOP and the Hungarian autocrat are becoming much closer. As you know, I don't think interwar Germany is a good point of comparison with the US. But I do think the democratic backslide in Hungary is much more relevant than that.

Apparently the GOP elites agree. There is now a Hungarian version of the US-based Conservative Political Action Committee (CPAC) which opened in May, with Orban as the main speaker, of course. CPAC US and CPAC-Hungary have signed a "Memorandum of Understanding"-- note the American and Hungarian flags waving harmoniously behind Orban as he states that,

We need to take back the institutions in Washington and Brussels. We need to work with friends and allies. We need to coordinate the movement of our troops, because we have a big challenge ahead of us. 2024 will be decisive.


See also this ABC News article: Hungarian nationalist PM Orban to deliver speech at CPAC, which includes these comments: "BUDAPEST, Hungary -- Hungary's nationalist prime minister will speak at a conference of prominent U.S. conservatives this summer, the latest sign of tightening relations between Hungarian and American conservatives."

While speaking on the theme of "God, homeland and family" (as shown in the video), Orban speaks of the need to have government control the media, something he has managed to do in Hungary, to a great extent. Speaking of Washington and Budapest as the "two fronts of the War for Western Civilization," he said:

Dear friends, let's have our own media. The madness of the progressive left can only be demonstrated if there is media to help us do so.

As I also told you earlier, this is why I don't talk about "wokeness" anymore. It is being used as the main bait for radicalizing disenchanted citizens who used to be mainstream, but got upset about the culture wars. Of course, once you take the bait there comes the switch: you let Dear Leader ( Orban? Trump? DeSantis? Pres. Tucker?) "run the show"-- literally and figuratively. And what a show it is, with 24/7 fear-mongering about non-white immigrants, LGBTQ causes and the like. We learned from 1/6 Select Committee testimony yesterday that Twitter was cowed by Trump for months. "If that account had belonged to anybody else it would have been deleted long before 1/6" said a lead moderator for Twitter in testimony. Fox, OAN, and others already thrive as, essentially, GOP propaganda outlets with almost no regard for evidence based reporting. Do we even want to imagine emulating the Hungarian model of state controlled media?? (see, e.g., New Report: Hungary dismantles media freedom and pluralism)

This is not good news, IM. The GOP and far Right parties in Europe are becoming more and more cooperative. Just a couple of months back, Steve Bannon was in France sharing the stage with then-presidential candidate, Marine Le Pen (leader of the National Front or National Rally). Thankfully, she lost. But that's not my point. What the GOP is becoming/has become here has its analogues in much of Europe where reactionary, and often bigoted parties have been growing alarmingly over the past 5 or 6 years (esp. since the refugee crisis and Brexit). Seeing a European iteration of CPAC in this context is alarming. Jonathon Krohn, one of the few journalists allowed to cover the opening of CPAC-Hungary writes:

BUDAPEST, Hungary — European and American conservatives descended on this city Thursday morning to bemoan the supposed ‘suicide’ of Western civilization. The impending cultural death was blamed on a variety of causes, including immigrants who were “replacing” native-born workers; communists and “progressivists” pushing “gender madness”; and liberal democracy, which was creating a new “civic religion” out of the rights of man. Speakers, ranging from the CEO of Parler to the Prime Minister of Hungary, railed against the ‘woke’ media and the “unified troops of the international left” during a series of programming blocs with titles like “Western Civilization Under Attack,” “In God We Trust,” and “The Culture Wars in the Media.” It was the opening day of CPAC Hungary, the first European edition of the American Conservative Union’s flagship confab, and dark clouds were forming over Hungary....

What were those ideas and how could [Europe and America] be salvaged?

The answers proposed by an international slate of nationalist speakers betrayed a growing affinity between American conservatism and illiberal authoritarians in Europe. Immigration, gender identity, abortion rights, foreign culture, and the media all needed to be heavily controlled by stronghanded politicos in order save the native (white) population, the Church, and ‘Western civilization.’

“Hungary is the laboratory where we have managed to come up with the antidote for progressive dominance,” said right-wing Hungarian Prime Minster Viktor Orban. “The nation comes first: Hungary first, America first.”

The full article, CPAC Europe is a Safe Space for Authoritarians -- and the Republicans Who Love Them, is here.

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I've said it before here and say it again: The intolerant, anti-democratic authoritarianism that the Republican Party, T**** and their dark free speech Leviathan (Faux News, etc.) have fomented and unleashed has taken on a life of its own. Things are spinning out of control and the odds of partisan social violence continues to increase with time.



This is what fascist Republican 
talking points actually mean

Tuesday, July 12, 2022

The 1/6 Committee hearing today: American fascism is a matter of faith

Fascist Republican rhetoric and politics in the weeks before the 1/6 are clear and undeniable. The fascists based on faith their belief that the 2020 election was stolen. Contrary facts and sound reason were denied or deemed non-existent or irrelevant. 

That's like the Bill Nye the Science Guy faux debate with Tom Ham, the young Earth "theory" crackpot discussed here yesterday. Faith says the Earth in young, but facts and reason contradict it.

One cannot debate faith, but there is no choice but to try. People with faith believe regardless of supporting, ambiguous or contrary facts, truths and/or sound reasoning. That's more or less the definition of faith. 

Liars are a different beast. They are at least impervious to contrary facts, truths and/or sound reasoning as faith-based believers.

The testimony today makes it undeniable that the fascist Republican assertion that the 2020 election was stolen is either a lie or a matter of faith. Either way, it is not a matter of fact, truth or reason. That's how fascist, pro-T**** Republican faith has to work. There is no other way. 


Waddabout Ciopplone and the Republicans who argued against the fascist tyrant?
What about them? If the GOP had been in control of the House after the 2020 elections, there would have been no 1/6 Committee. Their knowledge would have been buried. What would they have done? Mostly nothing. It is probably only the cognitive dissonance the 1/6 Committee created that forced them to reluctantly testify. What else could they have done on their own, write a book of little or no significance, or just keep quiet and watch democracy and truth stand, wobble or fall?

The Republicans who fell on their own swords and resigned in protest are real patriots. 

Of course a good counterpoint is that with the Republicans who stayed and opposed T****'s fascism, we and democracy were better off with them staying there and opposing the tyrant than leaving quietly or in a blast of public criticism. Maybe non-fascist Republicans staying and opposing from with in is the best one can hope for with current American democracy. If so, democracy hangs on damn weak threads. Those folks are being RINO hunted. They will probably be extinct fairly soon in most positions of significant state or federal power. Those threads are being broken. 

Why Do Some People Believe in Conspiracy Theories?

 What happens when people see patterns and “clues” in random real-life events and start creating associations where none exist? A conspiracy theory is born.

A conspiracy theory is an idea that a group of people is working together in secret to accomplish evil goals.

Now, sometimes in the real world, people indeed do wicked things. We just have to look at criminal networks like the mafia, terrorist groups, and sex trafficking rings, for example. Even high-level political figures and celebrities get involved from time to time.

In other words, real conspiracies do exist.

So, how do you tell the difference between real plots and conspiracy theories? Well, sometimes you don’t know right away, but there are ways to find out.

Criminal cases are built on solid and provable evidence — not hunches, coincidences, or fabricated information like memes or social media posts.

On the other hand, when you closely examine the facts, conspiracy theories don’t hold up.

What makes conspiracy theories more deceptive is that they are woven into real-life events — all strung together in a fictional way. So, in some instances, they might make sense. But when you dig deeper, you start noticing the lack of consistency and fact-based proof.

And no, lack of proof shouldn’t be taken as evidence for the conspiracy. That’s the whole point.

Conspiracy theories often take flight during unsettling times.

For example, in a pandemic, during a close election in a politically divided country, or after a terrorist attack.

Why is that?

Painful and uncertain times might lead many people to find alternative ways to make sense of such a shocking or painful situation.

Following a conspiracy theory might help you feel you understand the events, and, in turn, this could alleviate some uncertainty and anxiety.

There’s more to conspiracy theories than the need to make sense of shocking events, though.

Personality traits of conspiracy theorists

Is everyone vulnerable to conspiratorial thinking? Not necessarily.

Conspiracy theory experts have found that certain cognitive styles and personality traits might be common among people who believe in them.

According to a 2018 study, people who believe in conspiracy theories tend to show personality traits and characteristics such as:

  • paranoid or suspicious thinking
  • eccentricity
  • low trust in others
  • stronger need to feel special
  • belief in the world as a dangerous place
  • seeing meaningful patterns where none exist

The strongest predictor of belief in conspiracy theories, according to the study, is having a personality that falls into the spectrum of schizotypy.

Schizotypy is a set of personality traits that can range from magical thinking and dissociative states to disorganized thinking patterns and psychosis.

Examples of mental health conditions in the schizotypy spectrum include schizotypal and schizoid personality disorders and schizophrenia.

Not all schizotypy personality traits translate into a personality or psychiatric disorder, though.

Many people have one or two symptoms of schizotypy but don’t qualify for a full diagnosis.

Preliminary research also suggests that belief in conspiracy theories is linked to people’s need for uniqueness. The higher the need to feel special and unique, the more likely a person is to believe a conspiracy theory.

Other personality traits commonly linked to the tendency to believe or follow conspiracy theories include:

The link between personality traits and personal beliefs is a complex one that cannot be explained by isolating social and cultural factors, though. Research on the topic is still limited.

Suspicion: An evolutionary advantage?

Humans seem to be prone to suspicious thoughts and paranoia.

In fact, some expertsTrusted Source have studied paranoia and suspicious thoughts as an important evolutionary advantage.

One of them is professor of clinical psychiatry Richard A. Friedman, MD, who writes in his viewpoint paper, “Why Humans Are Vulnerable to Conspiracy Theories”:

“Having the capacity to imagine and anticipate that other people might form coalitions and conspire to harm one’s clan would confer a clear adaptive advantage: a suspicious stance toward others, even if mistaken, would be a safer strategy than carefree trust.”

In other words, from an evolutionary perspective, a conspiracy theory might help you stay safer if your rival attacks, as you have already anticipated their moves.

“The paranoia that drives individuals to constantly scan the world for danger and suspect the worst of others probably once provided a similar survival edge,” Friedman adds.

Illusory patterns

Believing in conspiracy theories can also be linked to distortions in cognitive processes.

Illusory pattern perception refers to perceiving meaningful or coherent connections between nonrelated events.

In other words, a distortion in how you think might make you prone to seeing patterns between events where there are none.

2018 studyTrusted Source tested this theory and found that distortions of normal cognitive processes were repeatedly associated with conspiracy and irrational beliefs.

In the study, under controlled circumstances, participants detected patterns in randomly generated stimuli. This helped them make sense of their environment and respond well to each situation, even when the connections didn’t really exist.

2008 studyTrusted Source found that lacking control in a situation increased a person’s likelihood to perceive nonexistent patterns, including developing superstitions and believing in conspiracies.

Participants who felt they lacked control connected unrelated events more often than participants who felt they understood and had some degree of control in a situation.

Apophenia: The tendency to connect the dots

The human tendency to seek and find patterns everywhere is indeed something that has often been linked to believing in conspiracy theories.

The human brain has evolved into seeing patterns in just about everything. It’s an evolutionary advantage but also a natural tendency.

We recognize animal figures in the clouds or uncover creepy faces in the bathroom wallpaper at night. If we meet three new friends — all named Bill — we tend to notice.

It doesn’t mean that every time we connect the dots we are right, though.

In fact, Friedman explains that humans detect patterns in randomness in an effort to make sense of the world quickly. This process, though, makes us prone to cognitive errors, such as “seeing connections between events when none exist.”

“For a species so intent on connecting the dots and making sense of the world, this information-rich environment is fertile ground for confusion and conspiracy theories,” Friedman explains.

There’s actually a name for this phenomenon: apophenia. This is the tendency to perceive a meaningful connection within random situations.

In other words, you take elements that are near each other by chance, and you see a meaningful and purposeful connection between them.

Experienced game designer Reed Berkowitz says that apophenia is common in the gaming world.

Take one of his games, for example. The goal is to find a clue in a basement to move to the following phase of the game.

The real clue placed by gamers was obvious. However, many of the players overlooked it and instead noticed a few loose floorboards. Then, they concluded their shape was an arrow pointing toward a wall. Consequently, they started tearing down the wall.

“These were normal people, and their assumptions were normal and logical and completely wrong,” Berkowitz wrote in a 2020 column.

There are different types of apophenia. These include:

Pareidolia, or connecting different visual elements and stimuli to form a nonexistent pattern. For example, seeing a face on the bark of a tree, or a specific sign in a light projected on the White House.

Clustering, or the tendency to find a pattern in a random sequence of data. For example, finding logic in a randomly generated sequence such as xvvxvvxxxvx, or seeing a trend in stock market fluctuations.

Gambler’s fallacy, or the inaccurate belief that if an event repeatedly happens during a certain time period, it will then occur less often in the future (or vice versa.) For example, if you toss a coin and get heads four times in a row, you’ll likely bet it’ll be tails next time.

Confirmation bias, or the “my way bias,” refers to the process of disregarding information that might disprove a belief while seeking information that supports it. For example, believing someone often sends secret messages in their speech will make you more likely to find secret messages in such speeches, even when that’s not the case.

A mathematical explanation

Following apophenia, there’s the Ramsey theory. This theory states that any large structure will implicitly contain patterns if you really pay attention.

That way, even in mathematics and geometry, patterns can be found whenever there are enough elements to connect.

So, according to the Ramsey theory, if you were to line up the text of just about any book, you’d find “hidden” words and sometimes several “meaningful” ones in a row.

In other words, if you’re looking for clues somewhere, you’re bound to find some!

QAnon: The excitement of living in ‘fiction’

QAnon, an internet conspiracy theory, has recently captured a large segment of the public’s attention.

It might be a strong indicator of another possible reason underneath some people’s tendency to follow conspiracy theories: the thrill of being the one who knows the secret.

QAnon has become so mainstream you may know at least one believer.

Followers of this conspiracy theory believe that an anonymous government insider, known as “Q,” often drops mysterious clues and riddles to expose the “deep state” apparatus.

According to QAnon believers, these clues range from the color of the lights the White House uses on a specific date to coded messages posted in internet forums.

For QAnon followers, former President Donald Trump is a secret agent fighting to save the world.

Who is he fighting against? A satanic cult of cannibals, pedophiles, and sex traffickers, led by Democratic politicians, such as Hillary Clinton and Barack Obama.

Why is QAnon so popular?

For some people, learning more about QAnon might just be a matter of curiosity.

For followers, QAnon might be convincing because its theories often play on:

  • people’s fears
  • the need to feel one is an empathetic person (e.g., saving the children)
  • a natural thrill to solve mysteries
  • a desire to be part of a like-minded group
  • an explanation and a possible hopeful future for things not going “your way” right now

Also, QAnon might offer the thrill of a game.

Yes. The constant search for secret clues in mysterious places might give you the dopamine rush of “unlocking levels” in a video game.

In fact, when Berkowitz saw what QAnon was all about, he immediately recognized Q’s tactics.

Berkowitz has vast experience creating stories and games that begin on a computer and move to the real world. To him, QAnon has a very “game-like feel.”

“When I saw QAnon, I knew exactly what it was and what it was doing. I had seen it before. I had almost built it before,” he said in his column. “It was gaming’s evil twin. A game that plays people.”

When asked by Psych Central why he thought QAnon was so alluring, Berkowitz summed it up:

“QAnon explains the world in terms of vibrant fictions and gives its members ‘permission’ to believe in these fictions as facts.”

It’s like living in a movie or a game.

“It offers an accepting community of like-minded people and a worldview that puts members in the center of an exciting ‘reality’ that they have an active role in affecting,” Berkowitz tells Psych Central. “QAnon is alluring because it gives life the intensity and emotional vibrancy of living in a fiction.”

He adds: “It’s about being in a community of people all working together to help save the world and solve a mystery that is always just about to be revealed.”

https://psychcentral.com/blog/conspiracy-theories-why-people-believe#whats-a-conspiracy-theory


Monday, July 11, 2022

Personal thoughts: Is it even possible to debate demagoguery?

Demagoguery (official definition): political activity or practices that seek support by appealing to the desires and prejudices of ordinary people rather than by using rational argument


Demagoguery (Germaine definition): any political, religious, commercial or other activity or practices that seek support by playing on and/or appealing to the ignorance, desires and/or prejudices of people rather than by using rational argument; demagoguery usually relies significantly or mostly on lies, slanders, irrational emotional manipulation, flawed motivated reasoning, logic fallacies, etc.; relevant inconvenient facts, truths and sound reasoning are usually ignored, denied or distorted into an appearance of false insignificance or false irrelevance



Way back in 2014, when cowboys with six shooters were duking it out against cattle rustling T. rex lizards, Bill Nye the science guy publicly debated young Earth believer Tom Ham, a crackpot Christian nationalist. He is a demagogue by Germaine's definition. Ham, the founder and chief executive officer of Young Earth creationist ministry and Answers in Genesis, challenged Nye to debate the question "Is Creation A Viable Model of Origins?" The debate was held at Ham's "Creation Museum" in Petersburg, Kentucky.




Before the debate, Team R&R (reality and reason) urged Nye not to debate because there was nothing to debate. Many in the scientific community criticized Nye's decision to debate, arguing that it lent undue credibility to the creationist worldview. Ham argued crackpottery like cowboys duking it out with dinosaurs in the wild, wild West. Obviously, Team R&R had a point. But Nye debated anyway. As expected, things ended just as they started. Minds did not change. But, Ham did get some publicity for his "museum" and probably made some extra money.


Rock solid proof that cowboys and 
dinosaurs co-existed in the 1800s


Over the years, it slowly dawned that, like the Nye-Ham nonsense, debating demagoguery is pointless, but probably unavoidable in most situations. Such debates are arguably more harmful than beneficial as Team R&R argued. But, maybe not as harmful as not engaging with demagoguery at all. There is nothing to debate when demagogues deny or distort important facts, resort to flawed reasoning and so forth. But they are there, influencing public opinion, well funded, and not going away.

Much (most?) of the harm arises from false balancing (false equivalence, bothsidesism). By simply debating with a demagogue, the demagogue's false assertions (lies), flawed reasoning and whatnot are treated with seriousness and respect they do not deserve. In the hands of a skilled demagogue, false balancing can feel or seem like rational thinking, especially when it appeals to prejudices, comforting false beliefs and the like. 

We easily mistake psychological comfort for rationality, i.e., nonsense has to be rational because it feels so right. But when relevant facts and the reasoning applied to them heavily favor one side and heavily undermines the other, a basis for rationality just isn't there. But the basis for false belief is still there, i.e., people still want to feel good about themselves and their beliefs, even when there is no basis for it. That never goes away. That is the demagogue's target.

The problem is that by ignoring the demagogue and not trying to counter the lies and nonsense, Team R&R leaves the public opinion playing field uncontested for the demagogues to slime all over. Demagoguery is rampant in major issues including climate change, climate regulations, gun regulations, the scope and meaning of the Constitution, civil liberties, and abortion. 


Slimed by demagoguery &
the ground gets slippery


I suppose little or none of this is new to most folks here at Dissident Politics. It's all come up multiple times. Guess it doesn't hurt to repeat some things. 

Doxxing a fascist billionaire

A day or two ago our beer boofing, sexual predator Supreme Court justice Brett Kavanaugh was disgruntled when protestors turned up outside the restaurant he was having dinner at. The protests disrupted dissert and Bretty-poo left the restaurant in a huff-snit. 

AOC was dismayed at the protests, musing that protesters should have at least let him eat cake.

Anyway, the restaurant in DC where this happened was a Morton's steak house. The restaurant issued a public statement saying that the beer boofer had a "right" to eat dinner without protestors disturbing his equanimity or the restaurant's feng-shui. Now the restaurant is being flooded with fake reservations and irate messages. Poor Morton's. Nah, not really. 

Morton's is one of those grossly overpriced cow and booze houses with dark stained wood paneling, low lights, thick carpets, comfy stuffed chairs and cute young waitresses. I know because over the years I've been to a Morton's for several business dinners. I didn't know who owned it or what he was.


Morton's is a subsidiary of Landry's. It's owned by Tillman Fertitta, a billionaire who also owns the NBA Houston Rockets (and has close ties to the NFL Houston Texans [and Donald T****]).

These are related restaurants/hotels/etc. in his corporate org if you'd like to avoid giving them your money/business:

  • Bubba Gump Shrimp Company

  • Cadillac Bar

  • Landry's, Inc.

  • Landry's Seafood

  • Rainforest Cafe

  • The Golden Nugget Hotel and Casinos

  • McCormick & Schmick's Seafood & Steaks

  • Saltgrass Steak House

  • Claim Jumper

  • Houlihan's

  • Joe's Crab Shack

  • Del Frisco's

  • Chart House

  • The Oceanaire

  • Mastro's Restaurants

  • The Palm

  • Grotto Restaurants

  • The Boathouse Restaurants

  • Vic & Anthony's Steakhouse

  • Brenner's on the Bayou

  • La Griglia

  • Willie G's Seafood & Steaks

  • EMM group (Catch Restaurants)

  • B.R. Guest restaurant group (owns 15 large Manhattan places, including five Dos Caminos, two Strip House steak joints, Blue Water Grill and Ruby Foo’s)

  • Restaurants Unlimited, Inc. (includes Skates on the Bay, Portland City Grill, Manzana Grill, Palisade, Cutters Crabhouse, Stanford's, Henry's Tavern, Kincaid's, Palomino Restaurant & Bar and Portland Seafood Company)

  • Kemah Boardwalk

  • Galveston Island Historic Pleasure Pier

  • Houston, Denver and Nashville Downtown Aquariums

  • Waitr (online delivery app)

  • several hotels in the Houston, TX area


One source reports that Rocket guards James Harden and Russell Westbrook may want out of Houston is because they have a problem with Fertitta’s support of T****.

If you are a pro-democracy patriot and happen to have a choice, consider choosing to not patronize any of Fertitta's establishments. He supports T**** and by implication, fascism.


Q: Can a person support T**** and not be a fascist in some form to some non-trivial extent?



Billionaire T**** supporter Tilman Fertitta

Sunday, July 10, 2022

Legal expert analysis: The fascist Republican Party legal movement

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. .... We maintain that the secrecy which pervades Congress, the executive branch and courts is itself the enemy. .... For all we know, the justices engage in some sort of latter-day intellectual haruspication, followed by the assignment of someone to write an opinion to explain, justify or rationalize the decision so reached. .... That the opinion(s) cannot be fully persuasive, or at times even partially so, is a matter of common knowledge among those who make their living following Court proclamations. -- AS Miller and DS SastrySecrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain, 1973, In this paper, Miller and Sastry bitterly criticize the court’s practice of deciding a case first, then coming up with a legal rational to justify the result. That is the opposite of how the law is supposed to work. Cases are supposed to be decided based on how the facts of the case fit with legal principles and doctrines, not the opposite way around. The court vehemently claims it works as intended, but that is not true especially with the current, hyper-partisan, radical right Supreme Court. On this point, the court has been a big fat liar for decades. The court relied heavily on unwarranted and unjustified secrecy to hide its partisanship, sloppiness and laziness, and to deny inconvenient facts and truths as needed.



Q: How would that court decide cases?
A: The right way, or else
(No, this is not an allegation that the fascist  
Republicans on the Supreme Court are Nazis)


Since congress is likely to stay gridlocked for a long time, the Supreme Court is the key place in federal government where Republican Party fascism can exert power and rapidly advance its anti-democratic agenda. In an opinion piece, Adrian Vermeule, the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School, gives his analysis of the current conservative legal movement. 

The key point he argues is that there is no conservative legal movement other than outcomes of cases. The Republican fascists on the court just make rationales up to defend their decisions as “constitutional” for whatever reason(s) they can dream up. If Originalism fits, then that will be the basis of the court’s “rational.” If the court says it decides because there is an “extraordinary case” and the court had to apply a “different approach” than the ordinary legal principles, that is how cases will be decided. In other words, the Republican fascists know in advance exactly what outcomes they want from each case they pick up and decide it. Once they know what decision will be, the radicals then make up the reasoning to support it. 

Vermeule relies heavily the recent Supreme Court decision that guts the authority of the EPA to regulate carbon dioxide to exemplify the facts and his reasoning based thereon. This analysis is really interesting and important, so I include most of his essay here. Vermeule writes in the Washington Post:
There is no conservative legal movement

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

Commentators rushed to discuss the significance of West Virginia v. EPA for the conservative legal movement, to which they assumed the justices in the majority belong, perhaps because the court limited abortion rights and strengthened gun rights in the same term. But that framing rests on an error: In reality, as this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.

It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. It is not an “originalist” opinion. Originalism purports to ground the interpretation of legal texts in the original public meaning as understood by the founding generation, for constitutional provisions, or in the original public meaning of enacted statutes. As Justice Neil M. Gorsuch recently wrote in Bostock v. Clayton County, which recognized sexual orientation and gender identity as protected categories under federal civil rights law, “this Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” In West Virginia v. EPA, however, neither the majority nor Gorsuch’s concurrence shows any interest in the original context or public understanding of the Clean Air Act provisions enacted in 1970 — perhaps because, as the court put it soon afterward in 1976, those provisions were widely understood to create a “drastic remedy.” In West Virginia v. EPA, the original understanding of the relevant provisions is absent without leave.

The court briefly, and Gorsuch laboriously, tried to ground the major questions doctrine in the separation of powers and the “nondelegation doctrine,” a putative constitutional principle which holds that Congress may not grant rulemaking authority to the executive in excessively broad or discretionary terms. On this view, the major questions doctrine is used to construe statutes narrowly to avoid a potential question of constitutionally invalid delegation. Requiring clear congressional authorization for important agency action, the argument runs, represents an attempt to implement the separation of powers at the level of statutory interpretation rather than constitutional law.

The problem, from an originalist standpoint, is that there is no constitutional question to avoid; the originalist credentials of the nondelegation doctrine are shockingly thin. Careful scholarship has confirmed the thesis that the nondelegation doctrine was essentially nonexistent during the founding era, in which the first Congress made broad delegations to the executive in a variety of areas, including military service, territorial government and relations with Indian tribes.

The doctrine is basically a creation of the Supreme Court in the later 19th century, and even then it did not control the outcomes of cases; the court has only twice in its entire history applied the doctrine as a matter of constitutional law, invalidating the central components of the New Deal’s National Industrial Recovery Act in 1935 — some 150 years after the Constitution’s structural provisions were written. Although Gorsuch’s concurrence tries to blur the nondelegation doctrine’s desperate lack of originalist credentials with a long string of citations to academic works, those arguments mainly eschew historical particulars in favor of abstract constitutional theory, and in the end the facts of the founding era are what they are: In the vast landscape of contemporary documents, total mentions of anything like a nondelegation principle would take up less space than an op-ed. Nondelegation is an invented tradition.

The decision is also not textualist, as Justice Elena Kagan observed in a crushing dissent. Textualism says that the ordinary meaning of statutory text is the law, but the majority‘s statutory analysis is cursory, and that of Gorsuch basically nonexistent. The court briefly claims that the major questions doctrine captures the ordinary understanding of Congress in situations where agency action has “economic and political significance.” (What agency action doesn’t?) But the court itself also makes a point of saying that the doctrine counsels against “a reading of a statute that would, under more ‘ordinary’ circumstances, be upheld.” The only cases in which the doctrine possibly makes a difference arise when the courts believe that a “highly consequential” issue warrants an extraordinary override of ordinary statutory meaning.

Finally, West Virginia v. EPA is not “restrained” in any possible sense. At the level of procedure, the court decided a case in which, remarkably, no agency rule existed. The Clean Power Plan had been repealed by the Trump administration, and the Biden administration had asked the lower courts not to reinstate it. Nonetheless, the justices felt that there was a sufficient threat that EPA might try to create such a rule in the future. Any more such restraint, and the court will end up dispensing with actual cases and controversies altogether in favor of pronouncing on abstract hypotheticals.

On the merits, the court insists, again and again, that the doctrine applies when cases are “extraordinary.” But this is not only to admit, but indeed to proudly proclaim, that this is a doctrine ungoverned by ordinary legal principles. Some legal doctrines are unpredictable in application; here unpredictability is built into the essence of the doctrine itself. Who knows when the court, or for that matter any one of the nation’s 700 district judges, will deem a case “extraordinary” and shut down a national federal regulatory program? Moreover, despite insisting that major questions cases are extraordinary, the court inconsistently went on to describe them as arising “from all corners of the administrative state” — a clear signal that the court expects its anti-regulatory approach to be routinely invoked in the future. The extraordinary has become ordinary. The doctrine displays the same vagueness of standards that the court finds objectionable, under the nondelegation rubric, when authority is granted to agencies. What is constitutional overreach for unelected bureaucrats in the agencies is constitutional virtue for the unelected bureaucrats on the bench. Whatever this is, judicial restraint it is not.
So, there you have it legal analysis fans. The Republican Supreme Court just makes things up to get the decisions it wants. There is essentially no legal principle in it at all. It is almost completely outcome driven, not principles of law driven. 

The court decides the case and then dreams up a rational to support the decision. That is exactly what Miller and Sastry bitterly criticized in 1973. The difference between 1973 and 2022 is that the Republicans on the 2022 court are anti-democratic, fascist, radical Christian nationalist and radical laissez-faire capitalist. The judges back in 1973 weren't as hostile to democracy and principled rule of law as the six radical Republican extremists. 

Those six yahoos are fixin’ to fix this country as they see fit. Most of us are not going to like what we are going to get. But elite Republican Party politicians and supporters are going to love what is coming their way, namely even greater amounts of wealth and power than they possess now.