Stanford University Press Blog

The Soil Where MAGA Grows

Why America Needs Good Government

RENA STEINZOR

The U.S. Capitol building by National Park Service/Tom Engberg - NPGallery, Public Domain, via Wikimedia Commons 

 

As polls in the battleground states shift and sway, and pundits warn that the margin will be razor thin, escaping anxiety over the 2024 election has become impossible. If Donald Trump becomes the 47^th president and commands the military to round up the “bad” people, as well as millions of illegal immigrants of color, will the constitutional guiderails of the country as hold? President Obama once characterized this paralyzing deadlock as a “fever” that would break after the 2012 election. Instead, it has deepened and spread.

The most common approach of the two parties and the legion of consultants who advise them is to focus on the motivations of distinct groups within the electorate. Examining how Democrats lost white working-class voters or whether Republicans have alienated suburban women may be useful in some contexts, but the methodology considers symptoms, not causes.

American Apocalypse, The Six Far-right Groups Waging War on Democracy » digs down to the roots of what spawned and nurtures MAGA, identifying the six amply funded, well organized, and rabidly private sector groups that produced the drastic revamp of a Republican Party controlled by Trump. The six include big business, the Tea Party (or, as it is known today, the House Freedom Caucus), the Federalist Society, Fox News, white evangelicals, and armed militia. Although the six do not appear to collaborate, they are well-financed armies fighting—and increasingly winning—parallel wars of attrition against government.

Presidential Immunity and the Supreme Court

Stanford University Press authors weigh in on Trump v. United States

Exterior of the United States Supreme Court By USCapitol, Public Domain, Via Wikimedia Commons

     

In light of the Supreme Court's recent decision on presidential immunity, we have gathered a small selection of responses from our authors. 

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David M. Driesen, author of The Specter of Dictatorship: Judicial Enabling of Presidential Power »

The Specter of Dictatorship» reveals how the U.S. Supreme Court's presidentialism threatens our democracy and what to do about it.

The Supreme Court’s immunity decision provides another example of how autocrats defeat checks and balances by capturing apex courts. We’ve seen the same thing act as a prelude to the loss of democracy in Hungary and many other countries.

If Trump is elected, this opinion offers him opportunities to rapidly vanquish democracy. The dissent pointed out that the Court’s rulings allow the President to order Navy Seals to assassinate a political rival or initiate a coup without fear of criminal sanction.  Steven Bannon has claimed that Trump will use the Insurrection Act to put down demonstrators if he is elected, and Trump has confirmed this, saying that he plans to establish a dictatorship for one day. This ruling frees Trump to order troops (or a paramilitary force drawn from immigration agencies if the military refuses) to fire upon demonstrators without fear of any consequences, which would go a long way toward establishing the fear necessary to sustain a dictatorship.  

            Trump has promised to follow the pattern of autocrats around the world by using investigation and prosecution of innocent political opponents to sideline them. A constitutional custom has long prohibited Presidents from making decisions about whom to investigate or prosecute. Functional democracies always obey such norms. This custom led the Department of Justice (DOJ) to resist Trump’s requests to investigate or prosecute Trump’s political opponents during his first term when there was no evidence of any crimes.

            But the immunity decision undermines the constitutional norm against presidential direction of prosecution. Justice Roberts stated that “the President may discuss potential investigations and prosecutions with his Attorney General and other DOJ officials.” His opinion identifies investigative and prosecutorial decisionmaking as part of the executive power vested in the President, without any mention of the norm aimed at preventing its abuse.

            Trump’s Supreme Court has become an enemy of the Constitution and the rule of law. It now resembles the courts that have hastened the end of democracies in many countries after an elected autocrat has appointed many of their members.

Who does the laundry in your house?

Bias, entrenched ideas, and federal court confirmation hearings

CHRISTINA L. BOYD, PAUL M. COLLINS, JR., AND LORI A. RINGHAND

April 2022, Oval Office— President Joe Biden, with  First Lady Jill Biden, Vice President Kamala Harris and Second Gentleman Douglas Emhoff, signs the commission for Supreme Court Justice Ketanji Brown Jackson. By The White House - P20220408AS-0716, Public Domain, Via Wikimedia Commons

 

Who does the laundry in your house?

That may not be a question most of us would expect to be asked in a professional interview, especially one in which we are under consideration for one of the most prestigious and highly sought-after jobs in our field. Yet when Amy Coney Barrett sat before the Senate Judiciary Committee to field questions about her qualifications and ability to serve on the U.S. Supreme Court, that is one of the many gender-biased inquiries she was faced with.

The question, undoubtedly, was intended to be light-hearted not discriminatory. The Senator who asked it seemed to think he was complimenting Barrett’s ability to juggle so many competing demands on her time. And yet, in the decades of public confirmation hearings, it had never seemed to occur to the Senators to ask any of Barrett’s male predecessors who handled their household chores. Male nominees simply don’t elicit images of busy homes and laundry. But Barrett did.

This is how bias often works, and why it can be so challenging to grapple with.

In high profile settings like the Senate Judiciary Committee, bias today rarely (we hope) manifests as intentional discrimination on the basis of race or gender. Rather, it appears when the nominee doesn’t quite “fit” entrenched ideas of what a Supreme Court justice is expected to look like, or how they are supposed to act. That disconnect can generate suspicion, surprise, or discomfort; reactions that women and nominees of color have to then deal with. So, Barrett did what so many women and people of color have done in similar situations. She laughed it off, and answered the question.

Racial Equality, Affirmative Action, and the Supreme Court

How Brown v. Board of Education became both a weapon and an ameliorative

DANIEL KIEL

The U.S. 2022 Supreme Court By Fred Schilling -supremecourt.gov, Public Domain, via Wikimedia Commons 

 

Next spring will mark the 70^th anniversary of the Supreme Court’s landmark 1954 decision in Brown v. Board of Education. The Brown decision declaring legalized racial segregation unconstitutional is among the most well-known and impactful rulings in the Court’s history. Indeed, at a time when the justices vigorously disagree on virtually every cultural topic, everyone affirms their agreement that Brown was correctly decided. But this unanimity is misleading. Scratch the surface and there are chasms among today’s justices about what Brown means.

This summer, a divided 6-3 Court struck down affirmative action in college admissions  in a pair of cases brought against Harvard and the University of North Carolina. The plaintiffs in the case had argued that the universities’ consideration of race, albeit as one of many factors in a holistic process, violated the Constitution’s equal protection clause. In 1954, it had been that same equal protection clause that the Court used in Brown to end Jim Crow segregation in schools, a system of racialized exclusion of Black students from educational opportunities. While the cases were about affirmative action in the 21^st century, there was an underlying battle among the various opinions offered by six different justices about which side better aligned with the spirit of a case nearly 70 years old.

On one side was a colorblind interpretation in the majority opinion of Chief Justice John Roberts and concurrences by Justices Clarence Thomas and Brett Kavanaugh. By this view, Brown prohibited any consideration of race by universities no matter what the purpose. On the other side were dissents from Justices Sonia Sotomayor and Ketanji Brown Jackson who claimed that the universities’ efforts were part of a broader demand for racially equal educational opportunities, like Brown itself.

This debate goes back to the initial aftermath of the Court’s revolutionary decision in 1954. Segregationists argued that Brown merely required removal of the racial designations of schools, simply getting the law out of mandating racially separate schools. By this argument, single race schools could persist after Brown, so long as student assignment policies were not explicitly based on race. This position was just short of outright defiance of Brown and led to years of delays in integrating schools in many communities.

Law and Society Association Conference 2023

 

 

 

Please enjoy this virtual space, showcasing our new authors, award-winning books, and highlights from the last year of Law at SUP.

 

New Books and New SUP Authors

Recent Award Winners 

LSA Resources

 

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New Books and New SUP Authors

Announcing new books, published in the last year. We’re offering 30% off these and other recent SUP Law titles with discount code S23XLSA-FM through our virtual exhibit ».

Browse new and forthcoming titles in our latest Law catalog »

The Charms of the Polemical

Negativity and the cultural legacy of the 1960s

BRUCE ROBBINS

Photograph of Matthew Arnold by Elliott & Fry , circa 1883 - National Portrait Gallery, London, Public Domain,  via Wikimedia Commons

When the publication date of  my new book Criticism and Politics: A Polemical Introduction » was announced, a number of people got in touch with me on social media and told me that what caught their interest was the word “polemical” in the subtitle. I hope they will not be disappointed by the modest degree of belligerence they will find in it. The book is also meant as an introduction to cultural theory.

(People also said they loved the cover. Thank you, David Drummond! Your brilliant design is better than the book underneath it.)

I start from the premise that fighting is already ongoing. As the US goes into the season of midterm elections, no one needs to be told that the Culture Wars of the last century are still very much alive. What is more surprising is that attacks on teachers for teaching seemingly uncontroversial matters, like the atrocity of slavery, have found an echo among literary critics themselves, some of whom accuse their colleagues of being too negative about our cultural heritage (“our” could have irritated quotation marks around it), and too negative in general.

How negative is too negative? There is a lot to fight over.

The negativity is often blamed on the heritage of the 60s movements that championed  race, gender, and sexuality rights. Those movements largely demanded greater representation in the name of an expanded democracy; logically enough, they were not always respectful of a past in which they and theirs had gone unrepresented, or worse. But there is much more to say on the subject. Methodologically speaking, I would argue, the broadest and most influential legacy of the 60s was not “theory” but the imperative to put texts into their historical context, and from the perspective of those who assume that the great texts of the past are timeless, contextualization will look like negativity—like tearing those texts down, judging the past by the moral standards of the present, showing it disrespect.  This is not entirely false. On the other hand, a great deal of entirely “positive” or “appreciative” criticism has been enabled and encouraged by “identity politics”—it is perhaps not seen as appreciative only because of the particular social content that is being appreciated.

Why the Founders Would be Aghast at the Supreme Court’s Abortion Ruling

Codifying Personal Freedom

BEAU BRESLIN

 

Signing of the Constitution by Thomas Prichard Rossiter, Public Domain (PD-US), via Wikimedia Commons

 

The Founding generation would be astonished by the Supreme Court’s abortion ruling.  Not because constitutional framers like James Madison, Alexander Hamilton, and Benjamin Franklin gave much thought to a woman’s decision to terminate her pregnancy.  Let’s be honest, they didn’t. No, the revolutionary and visionary men who birthed a nation and designed the country’s federal constitution would be astounded by the High Court’s impudent decision because it violated the very principle they fought so hard for – the principle that expanding liberty was the ultimate aim of a righteous polity.

The American Revolution was fought to expand liberty. Thousands of colonists perished on the battlefields of Saratoga, Breed’s Hill, Trenton, Lexington and Concord precisely in order to reclaim those rights that the British Crown had withheld. Those courageous individuals recognized that they were fighting to expand a conception of liberty that King George III so cavalierly disregarded. Indeed, the Declaration of Independence was penned by Thomas Jefferson and signed by 56 patriots so as to magnify the “unalienable” rights that the “Creator” had “endowed.” Governments, Jefferson wrote, “are instituted among men” to “secure these rights;” it was inconceivable to think otherwise.

John Dickinson, one of America’s most underappreciated constitutional Founders, even drafted an early version of the Articles of Confederation in which he emphasized the significance of extending personal freedom. As a Quaker, Dickinson recognized that a Constitution is divine; it is a sacred text. But it also evolves. And the arc of that evolution, he insisted, must point towards greater freedom—the extension of rights, not the retraction of them. His sentiments resonated with an entire generation. Most newly independent Americans embraced that bedrock principle.

Madison maintained, the list of freedoms that the founding generation has identified in 1789 cannot, and should not, be static. That list is not a fixed or settled object.

Law and Society Association Conference 2022

 

 

 

Please enjoy this virtual space, showcasing our new authors, award-winning books, and highlights from the last year of Law at SUP.

 

New Books and New SUP Authors

Recent Award Winners 

LSA Resources

 

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New Books and New SUP Authors

Announcing new books, published in the last year. We’re offering 30% off these and other recent SUP Law titles with discount code S22XLSA-FM through our virtual exhibit ».

Why We Need Intersectional Coalition Building

Understanding and combatting the surge of anti-LGBTQ legislation

ERIN MAYO-ADAM

The White House bathed in rainbow lights, 2015. By the White House, Public Domain, via Wikimedia Commons.

 

This year has seen the largest number of anti-LGBTQ bill proposals in several decades. Although anti-LGBTQ proposals have long been a staple of American politics, their breadth has increased tremendously in the aftermath of the Supreme Court’s decision in Obergefell v. Hodges, the court case that nationalized same-sex marriage. In 2016, immediately following the Obergefell decision, the number of anti-LGBTQ proposals skyrocketed to 175. Since then, the number has steadily increased each year, culminating in over 300 anti-LGBTQ proposals in 2022  as of late April. Why have state and local governments increasingly attacked the LGBTQ population through harmful legislation? What might movement organizations and the public do to help abate these proposals?

The current wave of anti-LGBTQ proposals began to pick up in 2015, when Christian nationalist groups pivoted away from focusing on same-sex marriage and, instead, focused their state-based activism on curtailing the rights of transgender people. For example, in June of 2015, just before the Obergefell decision was announced, the Family Research Council released an issue analysis report that placed the blame for what it called the “assault on the sexes” on three waves of progressive movements: the “modern feminist movement,” “the homosexual movement,” and the “transgender movement.” The report proposed a series of policy solutions targeting the transgender community, including legislation prohibiting governments from allowing gender changes on identity documents, prohibiting insurance companies from covering gender-affirming care, and prohibiting transgender people from using sex-segregated facilities that conform with their gender identities.

Why have state and local governments increasingly attacked the LGBTQ population through harmful legislation? What might movement organizations and the public do to help abate these proposals?

Beyond Law

Sex work and decriminalization in South Africa

I. INDIA THUSI

Protesters in South Africa organizing for the full decriminalisation of sex work. The protest was organized by by Asijiki Coalition. Photo by  SG ZA - Own work, CC BY-SA 4.0. Via Wikimedia Commons

 

SUP is proud to present an adapted excerpt from Policing Bodies: Law, Sex Work, and Desire in Johannesburg.

Though clearly sex work is often dangerous and hazardous, these dangers can be mitigated under decriminalization. Accordingly, decriminalization seems suitable in most contexts in its recognition of the sex worker’s autonomy and liberty. However, a singular model for sex work regulation should not be transposed to all contexts.

The treatment of sex work should be localized. As seen during the course of myethnographic inquiry, Policing Bodies », there is no singular sex work, even within the same city or the same locality. Sex work is continuously shifting, and its formations are vulnerable to minor geopolitical changes. The appropriate regulation of sex work will vary by location, and different sites may require different solutions to accommodate this.

In South Africa, stark economic realities make sex work a viable option for some women. Taking away these women’s clients does nothing to redress their economic situation and treats them as infants incapable of independent decision making. In this way, a perspective that is decidedly intersectional, that is sensitive to overlapping systems of oppression by considering the sex workers’ gender, race, and economic status, allows for a nuanced analysis of the realities of using sex for work.

What Would Jefferson Snap?

A Call on Gen Z to Rewrite the Constitution

BEAU BRESLIN

Portrait of Thomas Jefferson by Rembrandt Peale, 1901. Public Domain. Via Wikimedia Commons.  Additional text added by the SUP Social Media Specialist.

 

Thomas Jefferson would have loved TikTok. He would have been a fierce champion of a generation of Americans – labelled Gen Z or iGen – that grew up with cell phones in their hands, a strong penchant for escapism, and an outsized regard for social media influencers.

You see, for Jefferson, it was all about thwarting tyranny. The opening lines of the Declaration of Independence herald his conviction: “When in the course of human events, it becomes necessary for one people to dissolve the bands which have connected them with another,” he wrote, “it is the right of the people to alter or abolish [the existing government], and to institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” His loathing of King George III on full display.

But those same sentiments and that same loathing, Jefferson would argue, should now be directed squarely at him. And at Madison. And Hamilton. At Adams and, yes, even George Washington. America’s most eloquent eighteenth-century wordsmith knew that tyranny was not the sole estate of a mad king. Despotism can also come in the form of one generation holding unconstrained political authority over another. “The earth belongs in usufruct to the living, the dead have neither rights nor powers over it,” he famously wrote to James Madison, by which he meant that one generation has no more right to regulate the lives and liberty of another than does a foreign power have the right to oppress its colonial subjects. Today’s Americans, he would say, should shed the chains that unjustly bind them to the founding generation.

The Specter of Dictatorship Still Haunts Us

How judicial augmentation of presidential power makes our democracy vulnerable.

DAVID M. DRIESEN

The exterior of the U.S. Supreme Court. Free for commercial use. Via Pixabay.

 

President Trump’s attacks on the press as enemies of the people and his call to “lock-up” his political opponent in the 2016 election made me realize that Trump’s election endangered America’s democracy. I felt the need to understand more deeply the nature of our vulnerabilities to democracy loss, which led me to study democratic decline in Turkey, Hungary, and Poland and write the Spector of Dictatorship: Judicial Enabling of Presidential Power ».

While President Trump has now left office, America’s democracy remains vulnerable and under attack. A comparative constitutional perspective helps us better understand the nature of the threats we face. In particular, The Specter of Dictatorship helps us appreciate the danger lurking in the Supreme Court’s support for increased presidential power.

Historically, elected authoritarian leaders have subdued democracies, in part, by taking full control over the executive branch of government, firing neutral experts and political opponents, and peopling the executive branch with their supporters. Once they have control, they use it to undermine the rule of law, tilt the electoral playing field, and shrink the space for public debate. For example, Hungary’s autocratic prime minister, Viktor Orbán, uses prosecutorial authority to protect corrupt supporters and unleash unjustified investigation of political opponents. His government uses partisan gerrymandering and restrictive voting requirements for expatriate Hungarians to cling to power. All of these countries use economic pressures to do in opposition media, and Turkey has supplemented that with jailing of opposition journalists. Centralized control over the executive branch facilitates this. The Supreme Court and some scholars, however, support the unitary executive theory, which endorses complete presidential control over the executive branch, even though it provides a proven pathway to autocracy.

Critical approaches to teaching health and human rights in a pandemic

The centrality of asking when does misfortune become injustice?

ALICIA ELY YAMIN

Toronto— Protesters holding a banner demanding housing for the homeless during the COVID-19 pandemic. Public Domain. Via Flickr.

 

We are pleased to present an adapted excerpt from When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality » .

The sweeping disruption of the COVID-19 pandemic has generated broad public concern with the connections between population health, health systems, and democracy, on the one hand, and between our neoliberal global order and the realization of health and other human rights, on the other.  Students across geographic regions and disciplines—law, public health, nursing, sociology, gender studies, anthropology, and the like— are grappling with how to understand the suffering we ourselves and close friends and family are experiencing, as well as diverse people across our societies and the globe—and  what are appropriate legal, political and economic responses? 

These questions are not new. Having spent a career interviewing the loved ones of women who died in childbirth, and others who have died painful deaths in abject poverty, including from HIV and untreated cancer, I have come to believe that how we understand the relevance of human rights to health is inextricably shaped by how we understand individual versus societal responsibility for the drivers of disparities in health, and in turn what is misfortune versus injustice.

Even before the pandemic, it was clear that there was a need to disrupt our traditional strategies in human rights to address the drivers of scandalous inequalities across global health.

When we reexamine what it means to say that something causes someone’s illness or condition, we are forced to look at what produces certain distributions of power and privilege within and across societies. For example, is the cause of enormously disproportionate COVID-19 mortality among people of color in the United States really due to individual biological differences and co-morbidities?  Or is it more accurate to understand them in light of structural dynamics and social determinants, such as unequal exposures as essential workers, and housing conditions, and poor access to public health and medical care in a marketized health system?   When we call on ourselves and others to ask these questions, it quickly leads to de-naturalizing both the biological individualism of the medical and health fields and to questioning prevalent narratives about poverty, inequality, and population health which so many societies take for granted in our neoliberal world.

Even before the pandemic, it was clear that there was a need to disrupt our traditional strategies in human rights to address the drivers of scandalous inequalities across global health.  So I wrote When Misfortune becomes Injustice » not as a traditional text but to encourage critical reflection about what is required of societies, and of our global governance, for diversely situated people to live lives of dignity , including effective enjoyment of  health rights. In the devastation wrought by this sweeping pandemic, it has become even more essential for students grappling with these questions not just to learn a fixed set of skills but to assess critically how we got here in order to devise transformative ways forward, and to connect human rights to broader struggles for health and social justice, including climate justice.

The digital arms race

Can viral videos inhibit police brutality?

RONALD NIEZEN

Photo from istock by Getty Images. Stock photo ID:1174040771. Credit:EvgeniyShkolenko

 

The viral video that captured George Floyd's death sparked global outrage and huge protests around the world. In the wake of his killing, more footage of police violence surfaced as people took to the streets during the Black Lives Matter protests in clashes with law enforcement.  At the same time, surveillance technologies have taken on a power of their own. States everywhere are trying to gather data about protesters and dissidents, using sophisticated tools of spyware and surveillance. Under the surface of the tragic events surrounding the Black Lives Matter movement and myriad sites of mass violence elsewhere, we are glimpsing a secret arms race. This is a contest between law enforcement and its supporting technology corporations on one hand and activists (in all their variety), investigative journalists, and justice-oriented tech experts on the other.

Hateful language and violent videos are vehicles for trauma as well as weapons of accountability.

Those of us who lived through the Cold War tend to think of arms races as contests between powerful states vying for military-technological supremacy. Increasingly, many of us now recognize that a new kind of digital arms race is happening in a shadowy underworld, this time between ambitious governments using hacking, spyware, and troll farms to gain advantage over others. But there is yet another digital contest happening, not in the world of intelligence agencies, but before our eyes as we watch videos of police brutality.

As a tool in this contest, videos depicting collective violence have their own violent power. Content moderation on social media platforms, for example, is very dangerous activity. Thousands working as content moderators for platforms like YouTube, Facebook, and Instagram experience high levels of stress and trauma from constantly witnessing violence and hate speech. The public experiences this too:  Social media-posed footage of police brutality--the death of George Floyd being arguably the most widely seen video of this kind--has been an unintended cause of trauma for activists and members of the Black community, and anyone else whose sympathies and curiosity led them to view it. The same powerful emotions these videos evoke are key to the way they provoke collective indignation. Hateful language and violent videos are vehicles for trauma as well as weapons of accountability.

HOW THE U.S. CAN SUPPORT IMMIGRANTS EN ROUTE TO CITIZENSHIP

Ming Hsu Chen on American membership and exclusion.

MING HSU CHEN

The Statue of Liberty in silhouette at sunset. Free for commercial use. Via Pixabay

 

This piece was previously posted on the Scholars Strategy Network.

For the last decade, U.S. federal immigration policy has focused on enforcement. Indeed, an anti-immigrant thrust undergirds many of the major domestic policies of the last thirty years – from the tough on crime initiatives of the 1980s, to the welfare and work reforms of the 1990s, to the anti-terrorism efforts following September 11, 2001. Most recently, powerful political forces have pushed ethno-nationalism as a strategy for protecting America during a public health crisis. Beyond so many tendencies to reject immigrants are the underappreciated roles immigration policy can play in integrating immigrants rather than excluding and deporting them.

Members or Not?

Compared to U.S. citizens, immigrants hold statuses far short of full membership in U.S. society. For many, membership is circumscribed by their legal status as noncitizens. There also social, economic, and political barriers to full membership, even for naturalized citizens. Many immigrants, including naturalized citizens, struggle with access to language instruction, face economic barriers in the workplace, and find themselves without a political voice or vote. Increasingly, many fear brushes with law enforcement or immigration authorities that may lead to detention or deportation.

U.S. immigration law, unfortunately, tends to draw boundaries and exclusions. Noncitizens sit outside the circle of membership, and in many areas the laws are not obligated to afford them the equality or fair treatment due to citizens. Rather than seeing immigrants as individuals who are, at present, partial members of the U.S. community, and in many instances moving toward possible full citizenship in the future, U.S. authorities tend to regard immigrants as the responsibility of someone else, somewhere else.