May it Displease the Court
Mary: Welcome back everyone to another episode of May it Displease the Court
Lee: a podcast about how deeply and totally SCREWED UP the court system has always been
Mary: but especially under the Trump administration.
I’m Mary--your resident lawyer. I decided to throw away my law review credentials to work for poor people, which means I still have tons of student loan debt and most of my clients initially assume I must be a bad attorney bc otherwise why would I do this kind of work? It’s the same impulse that drives me to do all this work for a free podcast. Oh and I have KIDS who may interrupt, but I hope they don’t!!!
Lee: And I’m an academic and a rhetorician, I study rhetoric, and you’ll learn more about what I do in this episode because it’s all about academia. We’re on Twitter @courtpod
Mary: In this episode we’re looking at specific strategies that the anti-democratic revolutionary libertarian right, the McConnell-Trump-Koch/Dark money axis of evil for short, redefines particular words such as “liberty” and “courage” and “conservatives” so that they can dupe their supporters into believing they are getting one thing--more liberty, more courage, more conservatism--while they’re in fact getting less.
Lee: Yes, the motto of the Republic of France is “Liberté, égalité, fraternité”--liberty, equality, fraternity--and I keep thinking that the Trump administration’s motto is “liberty, courage, conservatism” except that each of those three words has been totally convoluted. The motto is more like, “tyranny, money, whiteness.” Speaking of which, Mary I gotta ask the burning question: does the white supremacist anti-choicer get pushed through before the election? Mary...your thoughts? Is it a foregone conclusion that the axis of evil gets the confirmation?
Mary: [Trump nominated former Justice Scalia Sup Ct clerk Amy Coney Barrett, who went on to be a Notre Dame law Prof, he nominated her to be a 7th Circuit Ct Judge just 3 yrs ago and she is a real darling of the Fed Soc. Do I think she will get through? I think so. But also the GOP with Congress and the Presidency couldn’t repeal the ACA and that was a foregone conclusion. Warren saying we should have lost that one and didn’t so maybe there’s hope. The Democrats don’t have any other play.
Lee: I’ve been thinking a lot since we last talked about Trump and about how since Ginsberg died there’s just no chance that any Christian conservative who is pro-life isn’t going to vote for him because they get the abortion vote.
Mary: saw a post from a pro-life Catholic who doesn’t like abortion but doesn’t want to focus on Roe and criminalization. She wants to do all of the policies that make abortion as unnecessary as possible while keeping it not criminalized and keeping out of people’s business.
She clearly has ties to conservative religious people. Her pitch is that there is no reason to not vote Biden then there isn’t one because you’re getting that justice anyway. That’s the only pro life box that Trump checks. He doesn’t check any other pro life box so there is no point. You’re already gonna vote. I wanted to comment against that and then was like “Mary shut your mouth that’s pragmatic.”
Now what she isn’t saying to them is that if the Dems get in then they are going to expand the court. But that requires bold action and it is unclear if Dems will take real steps to shore up democracy if it means changing broken things too much.
Lee: but this abortion thing is interesting because now, without abortion on the table, a lot of conservative christians are going to have to kind of fess up to the lie that was always in play that Trump is either a conservative or a christian.
Mary: yeah let’s talk about how not a conservative trump is. Here’s our first word for the day, “conservative.” Rant for a second.
Ian Haney Lopez, author of the book Merge Left, argues that the Trump campaign has relied on weaponizing race to attract white people, many of whom are economically exploited by that very administration. In addition to weaponizing race, Trump has also exploited the “conservative” label when he is NOT a conservative because:
Conservatives value institutions and want progress at a slow, sustainable, conservative pace.
Mary: Trump is not a conservative. McConnell is not a conservative. They conserve nothing. I think conservatives have forgotten what they stand for. You’re supposed to think that preserving your way of life is valuable. There’s a reasonable place where you can get behind--there’s value to that. But we can’t even have that conversation because we have been so hijacked. You’ve been taken over by this parasite body
Lee: yeah reminds me of that interview you and I did with Nancy MacLean author of Democracy in Chains and the two of you talked about how these anti democratic revolutionary pro corporate radical libertarians have basically co-opted the Christian Right.
Coming back to how they use or mis-use terms--I've been struggling with the use of the term conservative because they call themselves conservative but they're anything but conservative. And I do think that they have been engulfed by people who actually are conservative but they're now being led and co-opted by what I would call anti-democratic revolutionary Libertarians. And nobody calls them that, you know, because they get to hide behind this conservative label. You know that people think that they're talking about conserving democracy--conserving America--when that is not what the leaders are doing at all. So again, it's this conflict between what's going on under the surface and what kind of words that are used. They’re just like parasitic, you know? they're using these terms that we think we understand but they're using it differently yeah what did you say anti-democratic libertarian [...] Charles Koch was talking into his term days at talk about actual conservatives with nothing but contempt you know if these were the language myself cuz it was so insulted what they said about conservatives and about people who believed in God for that matter right but they realized that they were not going to get anywhere being radical as they were in his revolutionary and his auntie democratic we're going to be able to move policy change so what you see from that 1970s honesty about being revolutionaries of the ride is a kind of camellia my performance that develops over the next decade and more we're suddenly they realize the boats they need boats to get things done and the biggest share of boats that would be open to them or people who understand them as conservative so they adopt this false flag as you say in in kind of all the Takeover that space and to do so they also make alliances which are translate would be hypocritical to that 1970s honest libertarianism but they find ways to do it in particular with the religious right so. I don't talk about as much about this in the book as I kind of wish that I had in hindsight cuz he could ask about it a lot but they definitely from the seventies forward Buchanan and then come up to the religious right cuz they see that there are source of votes and the way that they do it on the ones who try to be more principled is the speaking terms of religious liberty a phrase that we hear a lot now right so now we hear about the religious liberty to basically discriminate write the religious liberty to deny my jobs to people who are queer or like to be exempt from Healthcare regulations that would have coverage for women's reproductive Health religious liberty to open your churches instead of a butt of a the coded 19 precautions so there Lily and scripting all these other actors for this conservative cause and I actually quote in the beginning in the introduction Orrin Hatch the senator from Utah are conservatives are not Republican their radical libertarian people what happened then if it's the exact same man who denies President Obama has the ability to see Josh's right because he is has become controlled by their program because they're such powerful donors and they can activate the right-wing base of Voters in primary challenges that you know kind of well the popular anger to the donor's purses so that no Republicans will step out of line. I think it was actually more to stand under Stalin in the Soviet Union in the politburo then we see now in the Republican party in Congress
Lee: Nancy makes an important point about “religious liberty” that I want to emphasize. Not just religious liberty but really ALL liberty. Liberty is our SECOND word for this episode. This word liberty is what we call a “signifier” meaning that it has been used in so many context and in so many different ways that you really can’t say, for sure, what it quote “means” anymore. Google the phrase “liberty definition” and you get two definitions:
the state of being free within society from oppressive restrictions imposed by authority on one's way of life, behavior, or political views.
the power or scope to act as one pleases.
Lee: Makes sense right? Liberty---uhhh--it’s kind of like freedom. No, it’s NOT like freedom. These two definitions in fact mean two different things even though they’re tied to the same word. That’s why you shouldn't use pop dictionaries as evidence for arguments--trick of the rhetoricians trade--almost all definitions for a word contain pieces that compete with each other.
The first definition is about freedom FROM oppression or authority. That is close to the more restrictive sense of the word used by the writers of the constitution--the founding f-words.
Liberty is a freedom FROM--it’s right there in definition number one: being free FROM oppressive restrictions. Freedom from tyranny in particular to this word as it grew out of two revolutions against tyranny.
Lee: It didn’t mean freedom TO do whatever you want. The Constitution guarantees property-owning straight cis white men--cuz if you’re Black or a woman or poor they didn’t write that shit for you--“liberty and justice for all.” Not “freedom.” Because freedom to do whatever you want is an insane guarantee when you’re trying to build a nation. Also, how do you guarantee justice or equality in the same breath as freedom if everyone is free to do what they want? You don’t. You guarantee liberty alongside justice and equality, not freedom.
Now the second part of the definition switches over to this concept of freedom TO do whatever you want: the power or scope to act as one pleases.
Lee: How is it possible that the same word can mean two basically opposite things? Because over the last half century, as the country became more diverse and that whole “equality” thing became something that we had to take seriously--liberty gets co-opted and redeployed as freedom by the Right, especially the far-Right, because they know that people can be mobilized to feel threatened and want someone to protect their “freedom” against people who want to come and take it. In the meantime, those same people--Koch funded fake libertarian Republicans and all of their big money donor cronies and pro-corporate inexperienced judges--don’t want you to have freedom. Not at all. They think of freedom like bait. So they dangle it. And while you’re chasing the freedom to do basic shit like drive a Diesel truck or own a semi automatic with a silencer, they’re busy curbing your ACTUAl liberties--your right to live without tyranny and have a decent standard of living and equal treatment under the law--so that they can line their own pockets at your expense.
They mobilize that sense that your quote “freedom” is being taken away by liberals, black people, gays, the poor, immigrants, scientists, protestors so that you’re so busy defending this basic bitch “freedom TO” while Trump McConnell and company are busy eroding your freedom FROM--they’re using your own entitlement against you to cement a regime that is truly tyrannical, truly anti-liberty, truly anti-Constitution.
Mary: AND DISSENT IS PUNISHED.
Mary: So as you know I’m obsessed with this court packing and I have been holding my nose and following some Koch surrogates like Carrie Serverino of the Heritage Foundation. I do this so you don’t have to. And I noticed her use the word courage to describe the judicial quality they were looking for in complying Trumps new Fed Judge nomination list. Then I saw Don McGahn, former White House Council and Leonard Leo also use the term and it was clearly code for a concept. So I texted Lee all excited bc I don’t know any other rhetoricians.
Lee: So I did a little research into this concept of courage in a rhetorical sense. Unlike liberty and conservative, which have pretty specific lines of march throughout the centuries so that you can see where they were and where they’ve come, “courage” is new territory. So, started at the Oxford English Dictionary, the only one I trust:
There’s a million definitions but here’s the one that is modern and general:
That quality of mind which shows itself in facing danger without fear or shrinking; bravery, boldness, valour.
So, at minimum, courage has a kind of disruptive quality--a willingness to disrupt and accept the consequences, which means that courage is fundamentally revolutionary, not conservative. In the definitions from the middle ages, now marked obsolete in the OED, also have another layer; they speak of heart and feeling:
The heart as the seat of feeling, thought, etc.; spirit, mind, disposition, nature.
What is in one's mind or thoughts, what one is thinking of or intending; intention, purpose; desire or inclination. (“To speak one's mind’, ‘to tell all one's heart’.)
So that’s somewhat helpful but if you’ve ever been trolled on social media by someone being hateful who is just “speaking their mind” then it’s kind of falling flat.
So let’s go to ancient Greek, seat of democracy, and look at how they conceptualized courage.
Tharseo, from Strong’s Greek, is from the root thar-, "bolstered because warmed up," "emboldened from within")
Going back to our last episode, where we talked about the ideological emptiness of the anti-democratic revolutionary libertarians, these people whose only ideology is money and profit and power for the sake of power, they are not courageous. They are not warmed from within.
Now, anti-choicers, people who want Roe v Wade appealed more than anything--so much that they are willing to back a man who couldn’t be called Christian in any language--those people are emboldened from within. They are on fire. I don’t like what they stand for, but at least they have a cause.
Jumping ahead to the 1950s, about the time that Nancy MacLean argues that these anti-democratic revolutionary libertarians started to co-opt the legitimate political Right in the wake of Brown v Board of Education, we see another significant use of courage.
Written by then-Senator John F Kennedy in 1957, the book Profiles in Courage was a profile of 8 Senators that JFK believed, “The project resulted in the publication of Profiles in Courage, which focuses on the careers of eight Senators whom “Kennedy felt had shown great courage under enormous pressure from their parties and their constituents.” That includes liberal and conservative Senators.
Now we have a sense of courage--and we might say political courage--that includes conviction--being emboldened from within, warmed from within--and a willingness to work against the status quo, to be emboldened when the opinion is not popular.
If we’re talking about what courage looks like, it looks like Republican Mitt Romney who spoke out in favor of Trump’s impeachment. It also looks like Republican John McCain time and again, including promoting bipartisan campaign finance reform that was gutted in Citizens United.
Let’s talk about Citizens United. In 2010, when Citizens United was decided, Reagan-appointed Justice Scalia, in the words of the Brennan Center, “reliably voted with the conservative majority as the Roberts Court expanded opportunities for higher and higher election spending by the few who can afford to spend the most.”
But then the Brennan Center goes on to also say that Scalia was a champion of transparency. Quote, “He feared that too much anonymity in public debate would threaten democracy itself.” They then cite Scalia from a 2010 case oddly about the disclosure of petition signatures NOT campaign funding. Here’s Scalia: In a 2010 case about the disclosure of petition signatures, he wrote:
Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously . . . hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
The Brennan Center concludes: “The nation is careening into an election in which voters will be bombarded by unprecedented levels of secret spending. Congress and the president have the power to improve disclosure but they have failed to act, leaving the door open for hundreds of millions of dollars to flow through dark money groups.It is likely that Scalia would be disgusted by these secret donors’ lack of courage.”
Now, I’m no fan of Scalia, but I can imagine a context in which a Republican appointed judge could legitimately support corporate campaign interests, because it’s part of that free market logic that Republicans like to deploy even though it’s a farce. Also, in 2010, the campaign disclosure rules were still on the books. I can even imagine that Scalia would not have been able to anticipate that Citizens United would pave the way for the rise of dark money donations. Although, given all that Koch, etc. had accomplished by 2010 it’s hard to imagine Scalia was that naive. But still, maybe Scalia is speaking here of Kennedy-style courage, of Tharseo, of corporations who are so “on fire from within” about their special interest--gun rights, anti-choice, what have you--and their civic duty to be accountable and transparent to the public. Of course, knowing what we know now about dark money donors from the Right, it’s hard to imagine how Scalia could have meant courage in the way he wants us to believe he meant courage, but I’m willing to give him the benefit of the doubt.
Except…
Jump back three years before Citizens United to 2007 at the 25th anniversary celebration of the Federalist Society. Mary remind me what that is again?.
Mary: To recap the Federalist Society started out as a group that started in the early 80’s of disaffected law school conservatives who wanted to have a larger voice in law schools. It quickly got co-opted by Koch funding and it started using dorky debate society to cover for its new role as political operatives. It claims to be a network of conservative lawyers and academics, but it is much more than that, it acts as a think tank the attracts and recruits prominent conservative lawyers, scholars, politicians, and even Supreme Court Justices to events; that publishes and podcasts; and that holds galas. But really it is the vehicle for powerful interests seeking to reorder the judiciary by grooming, vetting and selecting amenable judges
Lee: It’s the 27th anniversary, Scalia is there, Clarence Thomas is there. And they both speak about the group’s origins--its originating myth that, like that story about your weird engagement, keeps you together probably long after you should have broken up. According to the New Yorker, this is what Scalia said:
The Conservative Pipeline to the Supreme Court
“We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak.”
And then Thomas jumps in:
“look at this huge audience . . . and I can only imagine the courage of a few young people who came up with yet one more idea: let’s start something. Let’s start an organization where we can actually talk about ideas, where we can actually talk about the Constitution and its structure, and how that structure is to protect our liberty. . . . Can you imagine the courage that these young people had?””
The question I’m wondering is, did Scalia mean courage the way the Brennan Center credits him for meaning it during Citizens United?
Well, according to the New Yorker, it was, in fact, students who originally started the Federalist Society from scratch--although they had many Supreme Court justice as their advisors so there’s a chicken-or-the-egg thing going on here,--but, and I quote the New Yorker:
“it is less clear that tremendous courage was required. Within just a few years, the group was embraced and funded by a number of powerful, wealthy conservative organizations, which eventually included foundations associated with John Olin, Lynde and Harry Bradley, Richard Scaife, and the Koch brothers.”
Courage starts to get real funky the more examples we have of it being used in practice. Sure, some Federalist Society members might be lit by ideological fire from within, truly believing that their Constitution is under siege from liberal academics, and being willing to stand up to scrutiny for their convictions.
But as the money starts pouring in, as the dark money donor start buying up institutions and paying for research, and, this is the important part PUSHING SPECIAL INTERESTS THAT ARE ANTI-DEMOCRATIC AND ANTI-CONSTITUTIONAL, where was all this “courage” to speak up? Where are all of these Republicans and conservatives willing to stand up to Trump for colluding with Russia and firing anyone who disagree with him and refusing to disclose his fucking tax returns for chrissake?
Mary: Right. Courage means something else now. It seems to mean loyalty to powerful entities. Like how gang members need to prove their loyalty to the group by performing some sort of act or gesture before they are initiated into the group.
Fox News tells the story of Leonard Leo, former executive vice president and current co-chairman of the Federalist Society. Fox calls Leo the man behind Trump’s court takeover, working since the start of the campaign to make the President’s appointment lists.
An inside look at how Trump's Supreme Court list is made: ‘A tremendous investment of time’
Fox explains that Leo said that he must go through quote "every single" thing that a potential list member has ever written because, Fox is quoting Leo directly here, "the written word tells us about the candidate’s courage, about their views on the Constitution and the rule of law, and how they will approach their role as a judge."
Leo also told Fox that he’s looking for nominees who are, quote, “not weak [...] need to be courageous people who are not going to bend to the political or social pressures of the day.”
Notice Leo’s subtle but important shift here. Leo is using courage to mean NOT politically accountable! NOT accountable! For Kennedy the issue was bipartisan courage--the willingness to do what was unpopular with your party. For Scalia, if we give him the generous read, it was civic courage--the willingness to be transparent and accountable even when you might get shit for it. None of that seems to be in play here. And, certainly there’s no sense of that burning fire from within--that emboldening that comes from conviction, believe, righteousness.
Nope, we’re talking about one meaning of courage and one meaning only: willingness to tow the party line, a party line that has been thoroughly bought and paid for by big money, a party line that has sold out conservatism for racial anti-democratic libertarianism, a party line that has voted 80 unanimous 5-4 decisions in favor of corporate interests.
But that’s just a few lines from Scalia and Leo, right? I’m cherry picking. Maybe. Except there’s Carrie Severino, president of the conservative Judicial Crisis Network. Another big player in the Trump court takeover. Severino tells Fox News that Trump nominees, quote, “were chosen with specific interest in having a certain level of courage and principle in a way that the Bush administration wasn’t focusing on.”
And again later in the article Severino said Trump nominees "have consciously been vetted for making sure that they have demonstrated courage in their lives."
So if you subtract all of that Bush-era legislative courage, which presumably still reflects in his list of appointees, what is left for the Trump appointees? Money. Big fuck you to the middle class and the working poor and the poor big corporate anti-democratic money.
So when Trump or Leo or Gorsuch or Kavanaugh or anybody else writes or says the word “courage” you can be it means one thing: a willingness to side with corporate interests any and every time.
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