[Power corrupts; gerrymandering corrupts absolutely.]
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JUST ANOTHER WEEK IN THE FEDERALIST SOCIETY HELLSCAPE  
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Michael Podhorzer
April 10, 2023
Substack
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_ Power corrupts; gerrymandering corrupts absolutely. _

, Painting by Sharif Tarabay

 

Q: What do last week’s stories about Clarence Thomas, the Tennessee
expulsion, and the Wisconsin election have in common that most news
reports aren’t covering? 

A: The Federalist Society’s constitutional coup.

It’s obviously corrupt for a Supreme Court justice to be enjoying
luxury vacations
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a billionaire GOP donor “friend’s” dime, and then not disclosing
it. Thomas should be held accountable. Just as it’s wrong for the
Republicans in Tennessee to expel
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Democratic representatives for speaking out against gun violence. And
as great as it is for democracy, abortion rights, and more that Janet
Protasiewicz won last week’s Supreme Court judicial election in
Wisconsin, it is wrong that an outrageous partisan gerrymander has
been guaranteeing Republicans in the Wisconsin legislature a
near-supermajority of seats in a state that is split nearly evenly
between the parties. Each of these stories is major in its own
right,_ _but we cannot risk being so outraged by one justice’s
corruption, or so shocked by one theatrical instance of legislative
power abuse, or so heartened by one thrilling victory that beats back
an anti-democratic tide, that we risk losing sight of the bigger and
more consequential context that unites every major political story of
the past week: the Federalist Society project to overturn the
democratic progress of the 20th Century
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As much as the too-frequent days of record breaking heat waves, annual
“once in a century” floods and fires, rising sea levels, and
disappearing glaciers are the predictable whirlwind sown by rising
levels of carbon in the atmosphere, this past week's stories are about
the whirlwind sown by the revanchist coalition of capital and church
that came together in the Federalist Society to capture the judiciary
in order to advance its agenda. This campaign has been alarmingly
successful, rapidly rolling back 20th Century constraints on business
and the wealthy, as well as curtailing the civil and human rights won
in the last century by heroic democratic struggle – for which many
gave their lives, including Martin Luther King. Jr., assassinated 35
years ago in Memphis, Tennessee last week. 

IT’S NOT JUST CLARENCE THOMAS 

 
The Federalist Society majority has consistently handed down 5-4
decisions that favored business and opened the door for billionaires
like Harlan Crow to have an even greater impact on the political
process. Thomas’s vote was essential – and all of these decisions
came during the two decades that Thomas has been accepting yearly
luxury trips from Crow – but any other Federalist Society justice
would have done the same. 

Yet, too many play along with the idea that only character flaws or
cover-ups should disqualify Federalist Society approved judges from
the courts. Thomas, Roberts, Alito, Kavanaugh, Gorsuch and Coney
Barrett all swore under oath that they were going to decide each case
on its merits. But this image in the _ProPublica_ piece hammers home
a reality that should make us drop this charade. A painting at Crow's
resort shows Thomas smoking cigars and palling around with Federalist
Society mastermind Leonard Leo, and Mark Paoletta, who assisted in
vetting and shepherding judicial nominations for the Trump
Administration. 

Maybe a corollary to Stringer Bell’s admonishment not to take notes
on a criminal conspiracy should be to not have a painting commissioned
of one either. The Supreme Court presents itself to the American
people as a neutral arbiter that simply calls balls and strikes on
whatever cases happen to come before it. To be clear: Justice Thomas
does not rule the way he does because Crow has spent millions wining
and dining him; he is a Supreme Court justice because he could be
counted on to rule the way he has. This is not about a _quid pro
quo._ Instead, both Thomas and Crow are part of a supremely
well-funded conspiracy operating in broad daylight called the
Federalist Society that obtains the appointments of judges who will
ignore the particulars of every case in order to accomplish through
the judicial system what the revanchist coalition of capital and
church cannot hope to accomplish in anything like a democratic
fashion.

(Moreover, it’s impossible to believe that Roberts and the other
Federalist Society justices were unaware of Thomas’s vacation
habits. More likely, communication between those justices and those
billionaires who advocated their appointment, and the activists like
Leo who brokered the deals with Republican presidents, is so
commonplace that Thomas’s behavior raises no flags at all. I am
fairly sure that they were as shocked as Inspector Renault was to
discover there was gambling at Rick’s.) 

Thomas has been just one of the necessary minimum five votes that,
case by case, has transformed America into a nearly unregulated
paradise for billionaires like Crow – making their unlimited
political spending to corrupt democracy their constitutional right.
These decisions have directly made Crow and his fellow plutocrats
richer and more powerful, the rest of us poorer, and MAGA stronger. 

_Citizens United _is perhaps the most prominent example, but it’s
hardly the only one. The American Constitution Society
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compiled a list of 73 cases in which the Federalist Society court has
handed down narrow 5-4 rulings that advanced one of four Federalist
Society-friendly agenda items: (1) controlling the political process
to benefit right-wing candidates and policies; (2) protecting
corporations from liability and letting polluters pollute; (3)
restricting civil rights and condoning discrimination; and (4)
advancing a far-right social agenda.

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Those rulings also made the outrage in Tennessee possible and the
victory in Wisconsin necessary.

TENNESSEE: POWER CORRUPTS; GERRYMANDERING CORRUPTS ABSOLUTELY 

 

When politicians who have been handed the power to shield themselves
from accountability begin using their power to destroy their
opponents, the story shouldn’t begin and end with those politicians;
it should be about how they got that power in the first place. 

The _New York Times _reports
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In Tennessee, the General Assembly has carved up the state’s more
Democratic-leaning cities and all but guaranteed that the majority of
political representation is determined in Republican primaries instead
of in general elections, leaving lawmakers more responsive to a
far-right base.

Funny, but I thought that democracy won the 2022 elections. That was
in nearly every post-election headline, and nearly every press release
from democracy-defending organizations. 

Most analyses of the latest redistricting round marveled at what was
seen as its surprising fairness
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And, for the most part, to the extent that reporting about
redistricting cases went beyond legal arcana, the only speculation
about potential consequences addressed how much Democrats or
Republicans might be advantaged – not how those decisions might
affect _us, _the American people. Fairness to the two parties is all
that matters. 

But when we pull back from that myopic, granular, DC-centric
perspective, we can see that just since 2008, the democracy-busting
Federalist Society majority rulings have enabled MAGA Republicans to
nearly recreate the same one-party authoritarian grip
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the Confederate states that Jim Crow Democrats had after
Reconstruction. What is happening in Tennessee is hardly happening in
isolation or without precedent. 

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Unstated in the _Times _quote above is that Republicans in Tennessee
would not be in a position to expel anyone but for the series of
SCOTUS rulings that gutted the Voting Rights Act and threw the door to
partisan gerrymandering wide open. Even though Tennessee is a fairly
Republican state, Biden won 38 percent of the vote, and in 2022,
Democrats won about a third of the votes for the Assembly statewide.
Yet Republicans hold 75 of the 99 seats, or at least ten more than
they likely would have before _Shelby _gutted the Voting Rights Act
and threw out reasonable constraints on gerrymandering. 

And Tennessee is far from the only gerrymandered, MAGA-controlled
legislature to abuse its power in order to revoke the consent of the
governed. Ron Brownstein writes
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From Florida and Mississippi to Georgia, Texas and Missouri, an array
of red states are taking aggressive new steps to seize authority over
local prosecutors, city policing policies, or both. These range
from Georgia legislation
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would establish a new statewide commission to discipline or remove
local prosecutors, to a Texas bill allowing the state to take control
of prosecuting election fraud cases, to moves by Florida Republican
Gov. Ron DeSantis 
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Missouri Republican Attorney General Andrew Bailey to dismiss from
office elected county prosecutors who are Democrats, and
a Mississippi bill
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would allow a state takeover of policing in the capital city of
Jackson. 

The political class

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 is outraged by the actions of the Republican majority in the
Tennessee Assembly because of its astonishing insult to democracy and
decency. Whenever MAGA Republicans say or do something that is too
clumsily outrageous to ignore, we don’t ignore it. But when they are
less clumsy about perpetrating their outrages, our political class is
remarkably tolerant of them. Unless a Republican official says
something meme-ably buffoonish about it, we very rarely hear about the
millions of Americans living in Red states who are denied access to
Medicaid, or the untold numbers of women who have been denied urgently
needed abortions every day for the more than nine months since
the _Dobbs _decision dropped. 

In this way, the political class’s reaction is not that different
from Susan Collins’ professed shock after the _Dobbs_ decision.
She couldn’t possibly have been under any illusion that Kavanaugh
wouldn’t vote to weaken _Roe _so badly that it might as well have
been overturned. She felt betrayed because she thought she had his
commitment to do so with sufficient ambiguity. We must break the habit
of only reporting on the volume at which MAGA says the quiet part out
loud. 

WISCONSIN: WE LOVE TRAGEDIES WITH HAPPY ENDINGS 

 
In Wisconsin last week, as in Michigan in November when Democrats won
a trifecta, political class commentary called it a victory for
democracy.

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 However, they celebrate with notably more enthusiasm than they ever
expressed concern for the people of Wisconsin being trapped by an
undemocratic regime for the past decade-plus. In America, the
seriousness of injustices cannot be acknowledged until they are
overcome – when we can safely congratulate ourselves for a system so
righteous. (And democracy’s “victory” in Wisconsin remains far
from complete.)

The full meaning of Janet Protasiewicz has been lost on a media and
commenting class that sees nothing other than the lessons it might
offer Democrats about the power of the abortion issue, the panic it's
causing anonymous Republican insiders, and clues it might offer as to
the outcome of the 2024 presidential election. 

It’s worth a deeper look. 

In 2010, Michigan, Minnesota, and Wisconsin were very similar in many
ways – demographically, ideologically, and politically. They had all
voted for the Democratic presidential candidate beginning in 1992 with
Clinton; both Michigan and Minnesota had backed Democratic
presidential candidates by an average of 10 points and Wisconsin by
only slightly less (6 points). All three were (and remain) much less
diverse than the rest of the country, and similar in all the ways that
you would expect three adjacent states with fairly similar histories
and cultural traditions would be. Michigan was a bit more
industrialized, but they were reasonably understood as being very
similar Great Lakes states. 

But, on November 2nd, 2010, Michigan and Wisconsin began to radically
diverge from Minnesota when Scott Walker and Rick Snyder won the
governors’ races. Both Republicans won with the backing of
reactionary, revanchist billionaires (the Uihleins, Bradleys, and
Merricks in Wisconsin; DeVoss in Michigan) – whose ability to
influence the races had been supercharged by the Federalist Society
5-4 decision in _Citizens United. _But, in Minnesota, where there
were no comparable billionaires to lay siege to the state, Mark Dayton
eked out an 8,770 vote victory (0.4 percent). Thirteen years later,
there are important lessons to learn.

Walker and Snyder, with GOP majorities in their state legislatures,
fully exploited redistricting to lock those majorities in with some of
the most extreme gerrymandering in the nation. In the next chart, the
dark blue lines indicate the _percentage of the vote_ won by
Democratic candidates for their respective state houses in each cycle.
The lighter blue lines indicate the _share of seats_ Democrats held
in their respective state Houses. As you can see, in more than half of
the next five cycles after 2010, Democrats won half or more of the
votes, but never came close to holding a majority of seats, and in
Wisconsin have just barely stayed above the threshold of having a
supermajority against them (the dashed horizontal line). 

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Those billionaire-backed, MAGA-infused juggernauts wasted little time
going after unions, their only organized opposition. Both states
passed right to work laws, and Wisconsin gutted public sector unions.
Thus, while union density in Minnesota has declined by only a tenth of
a point since then, it has dropped by 5.5 points in Michigan and 7.3
points in Wisconsin. 

Here is a sampling of what else those MAGA Republican majorities
accomplished: 

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DEGRADING DEMOCRACY. Michigan and Wisconsin made it more difficult to
vote, with the intended effect that Black turnout rates declined.
Wisconsin went from requiring no documentation to vote, to passing
voter ID laws in 2011 that were so strict, they were ruled
unconstitutional by a federal court. (The voter ID law is still in
effect today due to an appeals court ruling in 2016.

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Michigan and Wisconsin became significantly less democratic as
measured by Jake Grumbach’s democracy index
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And when Tony Evers and Gretchen Whitmer won in 2018, the Michigan and
Wisconsin state legislatures used their lame duck sessions to curtail
the powers of those incoming Democratic governors. 
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RESTRICTING ABORTION. From 2010 to 2021, Michigan passed 6
restrictions on abortion, and Wisconsin passed 8; Minnesota passed
just one.

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SOCIAL SAFETY NET. Minnesota opted into the ACA’s Medicaid expansion
immediately; Wisconsin still hasn’t, and it took Michigan until 2014
to do so. Additionally, Michigan went from spending nearly a quarter
of their total TANF funds on basic assistance in 2008, to less than
10% in 2021. Minnesota took the opposite approach, increasing the
share of TANF dollars going to basic assistance from 15% to 25% during
the same time period. Wisconsin dropped from 17 to 15 percent. 

What did that all add up to for three states that had been so similar
in so many ways? 

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POLITICALLY. In 2008, Obama did 3 points better in Minnesota, 9.4
points better in Michigan, and 6.6 points better in Wisconsin than he
did nationally. Like Obama, Biden did 3 points better in Minnesota
than he did nationally, but he did 1.7 points worse in Michigan and
3.9 points worse in Wisconsin than he did nationally. In other words,
Minnesota remained exactly as much bluer than the rest of the country,
but Michigan and Wisconsin went from being meaningfully more
Democratic than the nation as a whole to being less Democratic. 

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PROSPERITY. Since 2010, median household income in Minnesota increased
by $11,155, compared to only $1,682 in Michigan and $5,356 in
Wisconsin. The poverty rate in Minnesota has declined by 3 points
compared to just 1 point in Michigan and a half point in Wisconsin. 

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MORTALITY GAPS. Michigan and Wisconsin lag behind Minnesota in life
expectancy, and the infant mortality rate in Minnesota is 4.2 per 100k
to Michigan and Wisconsin’s respective 6 and 6.8 – a gap that has
only widened since 2008. This trend is evident in several other health
metrics;  while the rate of chronic lower respiratory deaths has gone
down in Minnesota, it has risen in Michigan and Wisconsin, and the
difference in the number of deaths from cancer has increased as well,
with Wisconsin experiencing 30+ more deaths per 100k than Minnesota,
and Michigan 50+ more than Minnesota. 

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GUN DEATHS. In the decade between 2008 and 2010, Wisconsin’s
firearm deaths per 100k increased double what Minnesota’s did, and,
during that same period, Wisconsin’s state legislatures received
nearly 8 times the NRA donations that Minnesota did. 

CONCLUSION: FRUITS OF THE POISONED TREE

The nearly inevitable consequences of letting politicians regulate
themselves are no different than the consequences of letting bankers,
insurance companies or chemical companies regulate themselves – a
disaster for the rest of us. At each juncture we are told not to worry
– the market or elections will hold them accountable. But, of
course, the first thing the newly deregulated entities do is change
the rules so the market and elections won’t constrain them or hold
them accountable. Thus, we should look at Tennessee – and the many
other GOP legislatures engaging in similar abuses of power – through
that lens.

Our country is flummoxed by what I’ll call the fruit of the poisoned
tree. In this case, the fruits of the poisoned tree is the damage done
by illegitimate regimes. Even in the unlikely event that Thomas is
impeached, it would be of no moment to Harlan Crow; his investment has
already paid off. The poisoned tree has borne its fruit, and the rest
of us have to keep eating it. Read through the list of 5-4 decisions
that have radically changed this country; that’s the toxic world we
live in. I’m right there with everyone else who wants to see Thomas
held accountable, just as much as I believe we need to hold Donald
Trump accountable. But even if Clarence Thomas, and Donald Trump for
that matter, are held fully accountable, we have very little chance to
repair the damage they’ve done to our country already, let alone the
cancers they’ve unleashed that have already metastasized in the
federal judiciary, state legislatures, law enforcement, the media, and
the military. It is far more difficult to dismantle structures of
oppression and privilege than it is to establish them. 

That some object that decisions like _Citizens United _have helped
both parties – after all, billionaires are supporting Democrats too!
– merely reflects the extent to which our sense of democracy has
been degraded. We, American citizens, not the Democratic or Republican
Parties, are supposed to be the sovereigns. “Governments are
instituted among Men, deriving their just powers from the consent of
the governed.” The string of 5-4 Federalist Society decisions have
shredded the notion that manifold actions taken by manifold
billionaire-backed MAGA governments have anything like the consent of
the governed.    

Remember that the media that now celebrates the victory for democracy
in Wisconsin covered efforts to enact the Freedom to Vote Act as a
partisan fight that would help Democrats, even though its provisions
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have substantially reduced (if not eliminated) the kind of
gerrymandering that can now be clearly seen as so antidemocratic. And,
among Senate Democrats, concern for Michigan’s, Wisconsin’s and
other states’ capture by gerrymandered majorities was not sufficient
to make an exception to overcome a Republican filibuster which
succeeded in protecting not just gerrymandered state legislatures, but
the rash of legislation those legislatures enacted within months of
January 6th to make it more difficult for people of color to vote and
easier for MAGA to interfere with the election process in their states
from beginning to end.

Misguided democracy advocates, political analysts, and journalists
have long campaigned for greater disclosure as an antidote to
corruption like Thomas’s, because “sunlight is the best
disinfectant.” But for the unelected lawmakers on the Supreme Court,
ethics rules aren’t binding, and avoiding the appearance of
impropriety is optional. As for the elected lawmakers in
MAGA-gerrymandered states, they often simply change the rules to keep
themselves in power. 

“Accountability at the ballot box” has become an empty deterrent
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politicians in safely gerrymandered districts. But with only two
partisan “teams” with such diametrically opposed values to choose
from, accountability is also an empty deterrent in competitive
districts where no transgression is large enough to justify votes for
the opposing side. 

The sunlight streaming in reveals the fundamental corruption of the
system – but it also reveals how powerless we are to do anything
about it under the status quo, reinforcing our learned helplessness.
This may sound bleak, and it is. But James Baldwin put it best when he
said: “Not everything that is faced can be changed, but nothing can
be changed until it is faced.”

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By “political class” I mean reporters and commentators in the
mainstream media as well as others with important positions in
government and elsewhere.

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It should be emphasized that the only reason that Michiganders were
able to rid themselves of a MAGA state legislative majority is that
they were able to win a ballot initiative that transferred legislative
line drawing to an independent commission. 

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See NSCL’s Voter ID Laws
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more detail.

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Thanks to Elizabeth Nash at the Guttmacher Institute for these
numbers.

_[MIKE PODHORZER is the assistant to the president for strategic
research for the AFL-CIO, a federation of 55 labor unions representing
12.5 million members._

_An experienced analyst, he is the lead architect of the strategy to
expand labor’s political reach to all of America’s working
families, whether or not they are covered by collective bargaining
agreements. He has worked in politics for the past 25 years. He is the
co-chair of Catalist, founding chair of the Analyst Institute and on
the boards of numerous progressive organizations, including America
Votes and the Committee on States.]_

* Clarence Thomas; Federalist Society; The Tennesee Expulsion;
Citizens United;
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