Heidi Li FeldmanFolks here will notice that I’m less frequently detailing lower court opinions that attempt to stop the Trump regime’s lawless actions. This is because enough time has passed for enough appeals to reach the U.S. Supreme Court for U.S. to know that no matter how carefully a lower court judge explains and supports her rulings, the Supreme Court will act as lawlessly as the Trump executive. 1/ #LawFedi
This is a tragedy for the U.S. federal judiciary. It is not unexpected. 2/
From the outset, we knew that certain justices were wholly and irrevocably in the tank for Trump. I put Robert’s very close to this camp but thought his desire to preserve his standing with federal district court judges and lower federal appellate judges *might* temper the fealty he displayed when he wrote the majority opinion in the ignominious Trump v. United States. 3/
Had Roberts more commitment to rule of law and less regard for Republican Fascism, he might have been able to peel off Gorsuch, Kavanaugh, Barrett occasionally and get them to vote with Sotomayor and Jackson and sometimes Kagan. But it is clear that he has no interest in this role and the other far right justices definitely don’t. 4/
I know that brave lower court judges will continue to write well-reasoned important memoranda in support of their correct and significant decisions. I will continue to commend their efforts and sometimes explain them. But for all their skill and integrity, they won’t be able to prevent the worst effect of the Supreme Court’s perfidy: plaintiffs’ lawyers will stop bringing cases they clearly will lose on appeal. 5/
The lawyers who represent the plaintiffs in the cases against the Trump regime do not have the funds or the staff to litigate every instance of the regime’s lawlessness. They also do not want to litigate cases that will only serve to give the Supreme Court the chance to hand down a lawless diktat as though it should be treated as precedent. 6/
So most plaintiffs’ lawyers will become ever more selective and careful in who they represent and the issues they put before the courts. This is natural and understandable. But it is also frightening. The actions of the U.S. Supreme Court play a direct role in sharply increasing the prospect of a hot civil war in the United States. 7/
Without meaningful recourse to a judiciary headed by a court committed to rule of law, law cannot well serve its central function in a pluralist constitutional democracy like the one the U.S. had become by the early 2000s. Law in such a society just is the alternative to violence as the mechanism for resolving very deep conflicts among people with incompatible conceptions of the good. 8/
Of course, at the bottom, the law in such a society cannot be itself independent of every conception of the good: it has to be committed to basic tenets of pluralist constitutional democracy: no perpetual power grab by one group; actual representativeness in voting; commitment to basic liberties for each and all; a refusal to accept executive dictatorship. We know that Trump and his cabinet and the Republicans in Congress do not care about this conception of the good. 9/
Now we also know that a solid majority of the current U.S. Supreme Court also rejects it, refuses to adjudicate with any fidelity to it. This isn’t the first time a U.S. Supreme Court has eschewed the very basis of American law. But today’s Court’s lack of commitment rivals the most horrid of those other occasions. And when the Supreme Court is so debased, it is very hard to restore pluralist constitutional democracy without dreadful violence. 10/
I say none of this lightly. I fervently hope for and work toward the restoration of pluralist constitutional democracy and rule of law without even more and worse violence than anything like what we are already seeing. But I am a realist, and I know that with the collapse of the Supreme Court as a meaningful judicial institution, the work is going to be that much harder. 11/11
Ande JacobsonThe rogue SCOTUS majority's fealty to fascism is dangerous to be sure, but if this all turns violent, that could push us further into fascism more decisively as it would give Trump the justification he'd want to fully implement his desired police state.
Violence, or what you call a hot civil war cannot be the answer. Even if the higher courts don't uphold lower court rulings, there are far more people opposed to this regime than are for it. Peaceful engagement still needs to be the way to band together as we speak out to our communities, to our representation, and to the regime.
Grassroots JoeAs those who fought a decades long fight for civil rights and the full implementation of the 14th & 15th amendments experienced, violence will come from the fascists regardless of the peacefulness of those seeking equality and justice.
The fascists don't need a real predicate to implement a police state. They've already created a fake one, the existence of Black and brown undocumented immigrants, soon to move on to stripping citizenship from naturalized citizens.
M.S. Bellows, Jr.@joeinwynnewood @goodreedAJ @heidilifeldman And it's not either/or. Martin needed Malcolm to present the powers with a choice.
me_valentijn@goodreedAJ @heidilifeldman
If entrenched fascism is the guaranteed outcome of not opposing fascism, then the fear of encouraging fascism is a pretty ridiculous basis for not violently fighting fascism when everything else has failed.
This is why violent civil wars have precisely been the answer over and over throughout history. You get swallowed by an intolerable regime, or you fight it. The US literally wouldn't exist without it.
severtz@me_valentijn @goodreedAJ @heidilifeldman The US also created a system where revolutions didn't have to be violent. That was a stroke of genius. Peaceful revolutions over the last century have been twice as likely to succeed as violent ones. https://www.bbc.com/future/article/20190513-it-only-takes-35-of-people-to-change-the-world
@severtz @goodreedAJ @heidilifeldman
Chenoweth's methods and conclusions strike me as overly simplistic. Her research is premised on the assumption that the violence is chosen and precipitated by the protestors. But it could also be that regimes which are substantially more resistant to change instigate more violence both directly and due to (perceived) refusal to change unless physically forced to.
So the context of the protests needs to be factored in to any analysis of their impact upon the outcome. Additionally, there has long been an intensive effort for those in power to characterize all protests as violent. That makes it much more complicated to factor in the impact of violence upon broader social support at the moment of the protests, compared to years later when the actual facts are clear.
But yes, the US created a system where peaceful protest often worked eventually and after a relatively moderate amount of police/military violence. And now that system has been toppled by the executive, judicial, and legislative branches in the process of surrendering all power to a fascist president.
@me_valentijn @goodreedAJ @heidilifeldman I don't think Chenoweth claims they happened with no violence, just without violence from the protesters.
It seems to me to be likely that violence against peaceful protesters tends to bring out more protesters than violence against violent protesters. As an government soldier or agent, would you be more likely to fire on crowds that are throwing rocks or Molotov Cocktails at you or ones that might include your cousins?
1/2
@me_valentijn @goodreedAJ @heidilifeldman It's hard to characterize all protests as violent, if there are dozens of videos of the opposite. (Although, unbelievably, some people claim Jan 6 was peaceful.)
That said, Chenoweth has also essentially said that "Past Performance is Not Indicative of Future Results" https://www.hks.harvard.edu/centers/carr/publications/questions-answers-and-some-cautionary-updates-regarding-35-rule 2/2 (hope this works!)
Questions, Answers, and Some Cautionary Updates Regarding the 3.5% Rule
The “3.5% rule” refers to the claim that no government has withstood a challenge of 3.5% of their population mobilized against it during a peak event. In this brief paper, author Erica Chenoweth addresses some of the common questions about the 3.5% rule, as well as several updates from more recent work on this topic.
That's something that Heather Cox Richardson has talked about. Protests are important, but they need to be peaceful protests to have a positive impact. As soon as the protestors themselves turn violent, they lose public support, and right now, massive, sustained public support is what we're after.