With very few exceptions -- very notable exceptions, yes, which are not to be diminished but which skew more recently in our memory -- the Supreme Court has, historically, stood more often against progress than for it. We have been fortunate that that has not been the case in many important instances, but it is a matter of simple legal and historical fact that the court has lagged behind the political process in delivering justice rather than lead it.
The Court never ruled against slavery, did not deliver women the right to vote and took nearly a century to even begin to rule against Jim Crow. Even in instances where a single Supreme Court case stands paramount in the vindication of rights, such cases were only decided after years of people pushing our nation to get there, hard, in the social and political sphere. The Court often carries the ball over the goal line, but it's the people who marched it down the field.
This is not to say that we should not be worried about the Court's hard shift to the right. There will be considerable damage done to the course of human progress as a result of it in both the short term and long term. It is undeniably the case, however, that what the Court does will not be the final word.
It will not be the final word if people continue to fight, politically and socially, for justice and progress. Not if we push back against this madness by every means necessary, do whatever can be done to advance the cause of humanity and to beat back the cause of revanchism, nihilism and just plain evil.
Be sad today. Then get pissed. Then get to work. People who have faced far harder times than us have dealt with a society far less inclined to listen to their voices and far more inclined to do them violence as a means of silencing them. Yet they were not deterred. They did not wallow in defeatism. They kept fighting. And they won. Do them proud by doing the same.
Justice Kennedy is retiring, and he's going to be replaced by a much younger, more conservative justice who will do a great deal of damage in the very long time he serves on the bench. There's no way to sugarcoat that. Not at all. I will, however, make a few observations that you can give however much weight you'd like:
1. Despite Kennedy's past votes preserving victory in liberal causes, he has never been a sure thing, and each time there was much reason to believe he'd go one way before he went another. In light of that -- and in light of his track record in recent terms -- I had little faith that if, say, a Roe v. Wade challenge game up again that he'd vote to preserve abortion rights and I suspect he'd break right on host of other issues. Yes, it's bad that he's leaving and worse that we have Donald Trump nominating his replacement, but let's not pretend we're losing a liberal light of the judiciary, especially given that, five hours ago, he helped end organized labor as we know it in the Janus case.
2. A lot of people are saying the open Supreme Court seat will motivate Republican voters for the midterms this fall. I think that's overstated and possibly plain wrong. There are a lot of GOP voters who are strongly motivated by packing the courts with conservative judges, but those are also the sorts of GOP voters who vote in every election anyway. In this they're akin to that lady you know who works at the library, drives a Subaru, carries the NPR tote bag and can tell you the name of everyone on the ballot, right down to the third party candidate for that open school board seat three months before the general. Just as she's gonna be there voting for Democrats every damn time, the folks who get off on stripping people of their rights via the judicial system are already quite motivated, thank you very much. They're a big reason we're in the current mess.
3. While I have learned by now that there is nothing dumber, less-strategically-inclined and less effective than a Democratic political campaign, I suspect that the battle over the Supreme Court seat -- which Republicans will win, by the way, 100% -- could serve to help motivate Democratic voters who may not have otherwise come to the polls this November. This is especially the case if the seat is still open come November, but even if it is not, the sort of rhetoric with which Democrats should rightfully fill the air for the next couple of months over all of this should be the sort of things that motivate voters, especially young, normally less-than-fully engaged ones. People will vote if they think their very values and possibly even their very way of life is on the line. It very much is for the left. It is not for the right.
This is just my kneejerk reaction, mere minutes after Kennedy's announcement. Maybe I'm wrong, but I'd ask you: please, let's not be defeatist. There are elections to win this fall.
Tyranny does not arrive on our doorstep, fully formed, proclaiming itself as such. Evil does not wear a black hood and cape, monologuing about "the true power of darkness!" Such things come in increments. In drips and drabs, each drab appearing unremarkable due to its apparent innocuousness and each drip as normal and conventional, or at least described to us as such by our leaders or the media. Those who do evil are quite convinced that they are the good guys in their story and those who observe evil work extraordinarily hard, for a number of reasons, both consciously and unconsciously, to portray it as normal rather than aberrant.
We are, however, what we do not what we say we do. While there are many shades of gray in human behavior, that does not mean that there is no black and no white. Evil done under claim of righteousness is still evil.
As Hannah Arendt so compellingly observed in Eichmann in Jerusalem: A Report on the Banality of Evil, Adolf Eichmann was an unremarkable man, not a mustache twirling villain. He told himself, every day, that what he was doing was fine because everyone around him acted as if it was fine, duly passing laws to validate his acts, obediently nodding their heads or turning their heads away as it was done. When he had misgivings about what he was doing he'd try to make up for it with a good act here or a good act there, telling himself that his balance sheet was, more or less in order. He did not believe he was evil because he never consciously chose to do evil as such and did not consider that there was a higher arbiter of morality than the people who passed the laws or gave him orders.
Morality does not work like that. We must examine that what we do and that which we support, vigilantly. We must ask ourselves more than "is what is happening legal?" or "is what is happening good for me?" We must ask, in broad terms, "is what I'm doing right, moral, ethical and just?" We must ask the same of our leaders and of that which is being done in our name.
For several years in the 1950s, Senator Joseph McCarthy smeared anyone and everyone he could while conducting his hunt for communist sympathizers in the United States government. As he did so -- destroying lives and careers in the process -- he was afforded a level of respect and deference all Senators receive. His work, however unpopular, however unethical and however criticized by some, was treated as if it were legitimate, ordinary and within the normal parameters of his role as a member of Congress.
All of that changed on June 9, 1954. Not because McCarthy's colleagues did anything to stop him. Not because he broke a law or admitted to his overreach and his cruelty. It changed because, on that day, someone called him out for what he was.
His name was Joseph Welch, an attorney representing the United States Army, defending a junior attorney at his firm whom McCarthy put on blast for his own alleged communist sympathies. When McCarthy did this, Welch disposed with the usual behavior an attorney before a Senate committee is expected to display and called out McCarthy directly, with his now famous words, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?”
Those words marked a turning point. The point after which McCarthy's excesses and overreach would no longer be tolerated. The point where his work and his words were no longer seen as an acceptable part of political discourse and debate but were, quite correctly, seen as aberrant and unacceptable within the context of a liberal democracy. McCarthy's deplorable career and his deplorable work effectively ended that day. They ended because someone decided that they could not be tolerated and did something that was outside the bounds of what, in the moment, was expected. They ended because Joseph Welch disposed with deference and decorum. In short, he was uncivil.
Over the weekend, President Trump's press secretary, Sarah Huckabee Sanders, was dining at the Red Hen restaurant in Lexington, Virginia. Multiple members of the restaurant's staff told the owner that they objected to the administration’s recent actions leading to the separation of children from their parents at the U.S.-Mexico border and asked the owner to refuse Sanders' party service. The owner politely asked Ms. Sanders to leave and she left. The restaurant owner explained her reasoning to reporters. It was not about a mere, narrow political disagreement as such. It was a matter of ethics and morals and her and her staff's belief that the Trump administration had crossed a line into the "inhumane and unethical."
Not surprisingly, the matter has blown up into a huge controversy, with conservatives and Trump supporters likening it to Jim Crow-era discrimination and opponents casting it as a matter of conscience. Also, not surprisingly, much of the political establishment has sought to cast it in terms of "civility" and a failure of people to agreeably disagree about the matters of the day.
It's expected that the partisans would read this or any other controversy in a way that casts themselves as hero/victim, but the putatively neutral arbiters focusing on the lack of "civility" here as the real problem are the ones who truly get this wrong.
As Joseph Welch demonstrated, there comes a time when it is necessary to step out of one's expected, ordinary mode of behavior and say "no, this is not normal, this is not acceptable, and I refuse to behave as if it were." A time when we are not witnessing two sides debating in good faith regarding the correct path of the nation at which point we should no longer afford one of those sides the deference they expect. A time when we must speak up and make clear that their behavior and their views are not within the normal bounds of reasonableness and that they are not entitled to a seat at the table, figuratively or literally.
Saying such a thing tends to bother people because we've all been taught that we are all entitled to hold whatever political views and carry out whatever political acts we desire. And, of course, we are. We have come to assume, however, at least implicitly, that our right to do so carries with it an obligation of others to respect our political views and meet them head-on in good faith debate. That is simply not the case.
However shocking it may be for people to hear it, there is a finite spectrum of acceptable political values in this society. It's a wide spectrum in this country -- wider than in almost any other society in human history, I reckon -- but it is finite. We would not and should not accept into polite society someone who advocates for legalized murder, slavery, rape and genocide, for extreme example. Such people would not be given an editorial in a respectable newspaper or a seat at a town meeting and, I would hope, we would not allow such people into our homes or places of business. If you take issue with that, this is probably a good time to stop reading, but I presume most folks don't take issue with that. The point is, there is a line that one can cross where one is not merely espousing an "alternate viewpoint" which should be respected and at which point they are not entitled to deference and civility, even if there are still laws which prevent us from knocking them over the head with a well-seasoned cast iron skillet.
But surely there is a point before "legalized murder, slavery, rape and genocide" when such people can be and should be shunned, right? There is a spot on the political spectrum that is more extreme than "this person and I disagree" and less extreme than "this person literally wants me and everyone I love to be murdered" where it's quite alright to call them out as pariahs and refuse to accept them as merely one voice in grand political discourse, no? I sure hope so, because people who truly want to legalize murder, slavery, rape and genocide are probably gonna start a bit smaller than that. Slides into tyranny are almost always incremental. As such, it's best to nip such impulses in the bud.
We have a habit of painting our political adversaries as extremists, even when they are not particularly extreme, so there is always going to be a "you cried wolf" element to this sort of business. The fact is, though, we are now being ruled by extremists. I'm not talking about people of a certain political persuasion finding themselves temporarily ruled by folks of a different political party. That's a feature of our system, not a bug, and if you can't handle that you've got your own set of problems. No, I'm talking about extremism in the form of an administration, its enablers in Congress and its supporters around the country which hold no regard for basic liberal democratic values which both political parties in our country have long claimed to cherish.
What follows are not political opinions. They are basic, observable and incontrovertible facts regarding the Trump administration which should offend both Democrats and Republicans alike:
As a matter of simple fact, these are all acts and positions which are beyond the pale and which we have long considered to be utterly unacceptable in civilized American society. Under no circumstances are people required to respect it or afford it a place in the arena of normal, civilized political discourse. Under no circumstances are we required to be "civil" in the face of this base and reprehensible conduct by these reprehensible people.
The folks who own the Red Hen embodied this notion when they denied service to a key member of Trump's political and propaganda machine. Their act of incivility is already being overblown, of course, because denial of service in a restaurant carries a lot of historic and symbolic value, but it was the small way in which the folks at that restaurant had any power to lodge a protest against acts and views which fly in the face of the values of a liberal democracy. It was a limited act within the world they inhabit but which made it clear where they stand and what they stand for.
Those of us who do not own restaurants can and should react similarly. That does not necessarily mean denying people service or making grand gestures -- people should do what feels natural and right to them in any given moment rather than adhere to some sort of proscribed campaign -- but it does mean, like Joseph Welch before us, we should call out indecency when we see it and demand leaders and institutions which are moral, ethical and just, calls for civility be damned.
We must do so even if most people are inclined to pretend as if things are perfectly normal when they most assuredly are not. Perhaps especially so.
The news that Trump is ordering an end to family separations at the border is good. It's a limited act -- he's still enforcing an unconscionable "zero tolerance" policy against people seeking asylum and will now likely seek merely to prosecute and incarcerate children with their parents -- but it is a step back from the brink and any step back in this madness is something. There will almost certainly be devils within the details of his order -- he is Donald Trump and he is incapable of anything honest, straightforward and in good faith -- but it is a sign of limited surrender, even if temporary, on the specific point of family separation.
The child separation policy, it should be noted, was calculated to (a) intimidate and terrorize immigrants; and to (b) create a needless crisis through which he endeavored to obtain legislative concessions furthering his xenophobic anti-immigrant agenda. It's also clear that Republicans were all too eager to play along with Trump, attempting to use the cover of this crisis as a means of ramming through such legislation all while making a public case that, if Democrats did not sign on, they were not truly interested in addressing immigrants' plight. It was cynical and disingenuous theater at best. In my view it was an attempt at appeasement of government-implemented terrorism. However you describe it, it was shameful.
This order does not end the matter, of course. For one thing -- the most important thing -- thousands of children have been taken from their parents already, some of whom have been whisked thousands of miles from their families, many of whom may never be seen again by their mothers and fathers. Significant damage has already been done to them, psychologically and otherwise. That damage will not be fixed by the issuance of an order. It will likely last years. In some cases it will last forever.
It will also not end Trump's efforts to implement his anti-immigrant agenda. He will continue to seek to deprive immigrants, both those already here and those seeking to come here, of legal rights. He will still try to degrade, dehumanize and demonize them for political gain. He will still seek to build his pointless wall. On this front he should be fought at every turn by any and all legal, political and legislative means necessary. Even if the ethics of child separation are not complicated, the business of forging immigration policy is not easy business, and in no way should Trump be allowed to be the only voice speaking on the matter.
What he can no longer do, however -- and what he should not be allowed to do again -- is to manufacture and leverage a humanitarian crisis to to aid in those ends, using screaming children as his bargaining chips. That he has already done so is and will long stand as one of the most immoral and depraved acts undertaken by the United States in recent memory and those responsible for devising the plan, implementing it and defending it should be held to account.
We are ripping children from the arms of their parents and throwing them into cages. This is not hyperbole. It is literally happening. Border patrol agents are mocking the children as they scream for their mothers and fathers.
Anyone attempting to rationalize what we are doing to these children at the border -- or engaging in some rear-guard political spin to diminish just how truly awful it is in order to put its stink on their political enemies -- rather than simply demand that it be ended is a garbage person. They are morally and ethically corrupt. There is no other way to put it.
I don't say things like that very often. I argue with people about politics every day, almost always using the "argue the point, not the person" stuff I was trained to do. I won't do that here. This is a moral test. It should be a pretty goddamn easy one to pass too. Not that many aren't gleefully failing it.
There is nothing simpler than saying "taking kids from their parents and locking them up in cages is wrong." It's the easiest thing in the world. That's the case even if you have strong feelings about immigration and border security. People can negotiate about any topic, but not when one side is, quite literally, holding children hostage.
If you can't do that, I'm sorry, you're sick. You lack basic human empathy. Your moral compass is broken and I hope to God you find a way to fix it soon.
I am just as intrigued by autonomous vehicles as the next guy. Everything I've read about them suggests that they'll relieve congestion and improve safety, and I both hope and believe that to be true. Our roads are clogged and anything to unclog them -- and to improve efficiency, confer environmental benefits and cost savings compared to the current shape of our car-obsessed culture -- would be a good thing.
But while it's one thing to view autonomous vehicles as replacements for non-autonomous vehicles on existing roadways, it's another thing altogether to say that we should literally rip up existing mass transit tracks and fill the tunnels with them.
Oh yes, someone is saying that. Peter Wayner in The Atlantic, writing about how, rather than fix New York's aging, overtaxed and increasingly unreliable subway system, we replace it with autonomous vehicles:
The New York City subway is a miracle, especially at 3 a.m. on a Friday night. But the system is also falling apart, and it’s going to cost billions to keep the old trains running: $19 billion, at least according to one estimate from city planners. The time has come to give up on the 19th-century idea of public transportation, and leap for the autonomous future . . .
I'm less interested in the specific pros and cons of such a plan -- hey, we put a man on the moon, so why not a driverless Uber underneath Sixth Avenue? -- than I am in the assumptions and preferences which underlie it.
The premise of this idea -- one which has been astoundingly popular across the political spectrum over the past several decades -- is that it's simply unreasonable to expect our society to build and maintain great public works. That taxes are inherently bad and that raising them to provide goods and services for the well being of people is simply out of the question. It assumes, more specifically, that we simply cannot or should not fix New York's subway system because it's too hard. Too expensive. Not sexy. "Yes, the subway has been one of the marvels of the industrialized world for over a century," the article basically argues, "but it'll cost money and require work to maintain it so let's go with Project: Jetsons."
It's so very sad to see such a mindset. One which doesn't even attempt to push back, not even a little, against the mindless "government bad, taxes bad, private sector good" dogma which has permeated public discourse since the 1980s. One that completely ignores not just the immediate and obvious benefits of public transit, but which doesn't even begin to comprehend the second, third and fourth-order impacts public transit has had, particularly in New York. The city, as we know it, would not exist without the subway system. One would think that grappling with that fact would be required before one talks about replacing it with a bunch of Teslas in a tube.
It's also worth noting that this cars-on-the-7-line idea is intended to be operated by private companies on a for-profit basis. The article talks about how such an idea would take New York back to its roots, noting that the subway system was once a patchwork of private companies (the IRT and BMT, etc.) and public entities (the city-run IND) running competing lines. It might be useful for the author to note, however, that that system ended in the 1940s, with the city taking over and eventually creating a public transit authority to run it all, because the private companies had little interest in cooperating or serving the public effectively. Put simply: private ownership of public transit simply didn't work.
Any transit idea, however fun and futuristic it sounds, that does not appreciate the shortcomings private sector solutions have historically had when attempting to confront large scale public needs is fatally flawed. Any plan which does not appreciate the negative social, economic and even democratic impacts of a private, profit-driven system organized around individually-tailored and custom-priced trips, as opposed to moving masses of people along common corridors, is either hopelessly naive or intentionally tailored to sew inequality.
Most countries treat mass transit systems as national assets. They openly acknowledge the fact that public works require public investment in the form of tax dollars in order to deliver goods people want and need. They do not apologize for it, fetishize private investment or bend over backwards to invent crazy new systems from whole cloth when a near-perfect model -- time-tested and, however worse for wear these days, historically reliable -- is already in place. They do not act like it is a bad thing for people, through governmental authority, to build things via collective action. They recognize that public works are not, first and foremost, aimed at profit-generation, and for that reason they cannot, by definition, be the responsibility of those in the business, first and foremost, of profit-creation. For that reason, their transit systems tend to be far more useful and far better run than ours do.
We should fix the existing subways and build new ones where they are needed. We should build on what has worked in the past and fix that which is not working now. We must dispense with the idea that we can somehow disrupt our way out of having to pay for, build and maintain the sorts of large-scale public works which benefit society via public means.
We must, above all else, acknowledge that when it comes to building a civilization, there are no shortcuts.
Anthony Bourdain died today.
Unlike so many self-styled literary and entertainment industry badasses, there was simple skill, craft and humanity underlying the attitude, which he would freely allow to show. The former without the latter -- and without self-awareness-- is empty. Whatever he was doing to project that bad boy persona was immediately set aside when he got down to work writing about or chronicling a place, a people, a cuisine or whatever it was he was interested in at the moment.
In losing Anthony Bourdain, we didn't lose a "celebrity chef" or a "travel show host." We lost an insightful, empathetic and humane chronicler of the human condition. A man who could have so easily been a complacent, thrill-seeking, luxury-living, globetrotting celebrity but chose to be something more. He was an anthropologist who discarded dispassionate observation in order to advocate for the best in humanity, paying special attention to the vulnerable, the exploited and the overlooked.
Last year Bourdain went to West Virginia for an episode of his show, "Parts Unknown." In the space of one hour he did a better job of capturing my home state than a thousand poverty porn tourist journalists with pre-written stories parachuting in from coastal publications have ever done. It was typical of his work. He never went with the easy or expected narratives, even if doing so would've saved him a lot of work. Probably because he knew that those easy narratives obscured truths, perpetuated lies and, unwittingly or otherwise, served to work injustices, both large and small.
I embedded that episode below. You should watch it. If he ever went someplace special or interesting or unknown to you, you should watch that too.