As First Amendment attorney Anne Champion wrote: “The Court has eroded trust in itself through politicized decisions from Dred Scott on down.” The idea that attempting to reform a body that has done so much damage to democracy is somehow dangerous to its integrity would be laughable if it had been said by anybody other than a Supreme Court justice.
It’s remarkable how often justices seem to be ignorant of the history of their own institution and blind to the behavior of their colleagues, but it has happened time and time again throughout our history; such ignorance and blindness among the justices appear to be part of the court’s history as well.
In response to news of Biden’s Commission on the Supreme Court, Aaron Belkin, the director of the group Take Back the Court, said, “There’s growing recognition that the Supreme Court poses a danger to the health and well-being of the nation and even to democracy itself. A White House judicial reform commission has a historic opportunity to explain the gravity of the threat and to help contain it by urging Congress to add seats, which is the only way to restore balance to the court.”
It is an especially bitter irony that the very institution created to rule objectively on legal matters related to our founding documents and principles has become so deeply partisan that it can no longer be regarded as worthy of our trust.
PART IV
The Reckoning
CHAPTER 7
The Precipice
“This is democracy’s day,” President Joe Biden said in his inaugural address on January 20, 2021. “A day of history and hope. Of renewal and resolve. Through a crucible for the ages America has been tested anew and America has risen to the challenge. Today, we celebrate the triumph not of a candidate, but of a cause, the cause of democracy. The will of the people has been heard and the will of the people has been heeded. We have learned again that democracy is precious. Democracy is fragile. And at this hour, my friends, democracy has prevailed.”
We needed those words, we needed that hope, and, it turns out, we needed the inauguration, his inauguration, to be held in front of the Capitol. I had worried that this gathering would be dangerous, given the horrific scene there just two weeks earlier and the continuing threat posed by those who refused to accept the election results, but Biden made the right choice—to stand where presidents before him have stood. It was important to have one less thing taken away from us, to be reminded that, when the will is there to protect our freedoms, they will be protected.
I’m not sanguine about how triumphantly democracy has prevailed, however. America dodged a bullet—figuratively, when Donald lost his bid for reelection, and literally, when his most ardent followers stormed the seat of government in a violent attempt to prevent the certification of Biden’s definitive win. But, while it’s true that we snatched democracy from the jaws of autocracy, there is still a gun pointed at democracy’s head.
A democratic process, like an election, cannot fix the problems of a democracy if that process is deliberately hamstrung by a major political party that wants to do away with democracy in order to maintain its power in the face of a changing electorate whose interests the party only occasionally represents. And we’re still staring down the barrel of a potential crisis resulting from a fragile economy, the ravages of COVID, and a looming mental health crisis after more than a year of isolation and dread. There is much talk about returning to normal, but our normal wasn’t something to aspire to. As a country, as a society, there was, and is, much that remains broken. After this dual crisis of a government that nearly failed us and an existential threat to our very lives, we have an opportunity to make this country a better, more livable place for everyone, not just the privileged majority.
* * *
After the Civil War, the North had opportunities to right the wrongs committed during the colonial era and the first ninety years of this country’s existence. The North could have made the South pay for the damage it had done to the nation by trying the leaders of the Confederacy as traitors. The North could have dedicated proper resources, including offering free land and community assistance in the form of schools and hospitals, so that freed Blacks were at least somewhat compensated for the centuries of stolen labor and would have had a fairer shot at acquiring financial freedom. With their financial and political power hobbled, the ability of white Southerners to engage in organized and legislatively sanctioned terroristic violence would have been curtailed.
After World War II, the New Deal and the benefits of the G.I. Bill could have been extended to Black Americans, allowing them to accumulate wealth and education to the same degree their white counterparts did.
At almost every step of the way in our history, there were opportunities to make this country more democratic, more open, and more equitable. Instead, the North became more segregated and the South continued to be a closed fascist state. The political will to do the right thing was lacking, and one could argue that a scaffolding upon which a fully democratic society could be sustained had not yet been built.
By the same token, between the 2020 election and the inauguration seventy-eight days later, the Republican Party and its leadership were presented with many off-ramps (as they had been as soon as Donald announced his candidacy in 2015) that would have prevented or at least mitigated the damage Donald, as lame duck, was able to cause. From Mitch McConnell on down, the party could have immediately accepted the results of the election on November 7 as soon as media outlets declared Joe Biden the president-elect and Kamala Harris the vice president–elect. They could have ignored Donald and countered or even condemned his Big Lie while pointing out that his concession was not required in order for the election results to be certified. His lie therefore, like him, would have been irrelevant.
The party could have taken strong positions against Donald’s frivolous lawsuits. They could have condemned the conspiracies and the incitement leading up to the January 6 insurrection. And finally, they could have convicted Donald in the Senate after his second impeachment, or at least invoked the third section of the Fourteenth Amendment, which states, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” If nothing else, taking that step would have made it impossible for Donald to pretend he planned to run for the presidency again in 2024, and thereby shut down his ability to raise money off that pretense. But even that wouldn’t have been much help. By failing to act immediately after media outlets announced Biden’s victory, the party gave Donald more than two months to spread the Big Lie, gain adherents, and undermine the legitimacy and effectiveness of the incoming Biden administration. In the short term, the already anemic fight against COVID was weakened even further, placing untold millions of lives at greater risk. In the long run, the sanctity of our elections and, therefore, our entire system of government were put at risk.
* * *
People tend to shy away from language that seems extreme—as if it’s rude or using it would make them seem melodramatic or unhinged. If we don’t call things what they are, if we don’t use language honestly, we can’t expect people to understand what’s really going on. By failing to use language accurately—because it would be impolite or we don’t want to offend anybody—we set up a situation in which describing the Republican Party as a party of fascists leads people to question the extremity of the language rather than the validity of the premise.
But what else do you call it when a mob of white men shouts “Jews will not replace us” in the service of protecting a statue of Robert E. Lee? How else do you describe a party that didn’t just tolerate but supported putting children in concentration camps; suppressing dissent during peaceful Black Lives Matter protests with seemingly unidentified paramilitaries; dismantling truth
and distrusting reality; designating a free press and whistleblowers as enemies of the people—and by extension of the state? How do you describe a party that made one of its chief goals the theocratization of the federal judiciary? If anybody thinks after all of this that calling them fascist is rude, then we have a very serious problem.
* * *
The real damage, however, was done by the Republican Party’s failure to hold Donald accountable after his first impeachment. Democrats in the House had laid out clear evidence that Donald was guilty of the crimes of abuse of power in attempting to coerce Volodymyr Zelensky into finding—or manufacturing—compromising information about Joe Biden in an effort to steal the election and obstruction of justice in refusing to submit requested documents to the Judiciary Committee, ignoring subpoenas, and blocking the testimony of anybody in his administration. In spite of this, or more likely because of it, then–majority leader Mitch McConnell refused to allow Democrats to call witnesses during the Senate trial.
The failure to remove him from office allowed Donald to run for reelection with yet another grievance with which to stir up his already aggrieved base. While the proceedings were still ongoing, he had tweeted, “SUCH ATROCIOUS LIES BY THE RADICAL LEFT, DO NOTHING DEMOCRATS. THIS IS AN ASSAULT ON AMERICA, AND AN ASSAULT ON THE REPUBLICAN PARTY!!!!”
Worst of all, though, was the fact that seventy-four million people had the chance to express support for him with their votes, thereby emboldening him, empowering each other, and amplifying their ideology.
* * *
The Republicans had believed from the beginning that they could harness Donald’s hold on the base and use it to their own advantage while controlling him. Because of Donald’s willingness to go along with any policy they proposed, and to break promises and shatter norms, congressional Republicans had a two-year stretch of almost unimpeded success—if you measure success by the number of judges confirmed and the amount of money gifted to the richest individuals and corporations in the form of tax cuts.
In the end, it looked like they had made a bad bargain.
In the early hours of November 4, 2020, with seven states still too close to call and three days before the results of the election would be definitively known, Donald claimed victory. He called for “all voting to stop” because continuing to count ballots would be to commit a “fraud on the American people.” Just as Attorney General Bill Barr had done before the release of the Mueller report, creating a false narrative with the intention of shaping reactions, Donald was planting the seeds of doubt and grievance as, for the first time in modern American history, the loser refused to concede a presidential election.
The real premise of the Big Lie was that a majority of voters that included a diverse coalition of liberals, progressives, people of color, and LGBTQ people wasn’t really a majority at all. More pointedly, the message was a continuation of a message that had been sent to Black Americans since Reconstruction—your votes don’t count.
The claims of voter fraud were brazen enough, considering that the 2020 election was determined to be the most secure in American history by Donald’s own Department of Homeland Security. In the context of the extraordinary amount of Republican-backed voter suppression that occurred in many red states around the country, the claims amounted to more gaslighting.
The Big Lie gave Republican state legislatures and attorneys general a pretense for ramping up their suppression efforts through bogus fraud claims. They’d been employing these strategies for years, of course, but the fact that the Big Lie was being pushed by the man in the Oval Office gave it legitimacy among the Republican electorate and provided cover for any Republican officials willing to take advantage of the manufactured uncertainty.
Some Republicans made anodyne comments about giving Donald a chance to let the process make its way through the courts, with then–Senate majority leader Mitch McConnell claiming he was “100 percent within his rights” to turn to the legal system to challenge the outcome. As usual, privately they fretted over his outrageous behavior while publicly supporting his right to challenge the results. They suggested that his completely baseless claims had some legitimacy. All the while, they walked a fine line between casting doubt on Donald’s loss and embracing Republican victories in some contests in both the House and the Senate. Apparently only the presidential election was suspect, even though voters used the same ballots for the presidential and down-ticket races.
None of their arguments was made in good faith. The Republicans had no delusions about the integrity of the election or the veracity of Donald’s claim. But in deciding whether or not to back the Big Lie, and to what degree, the Republican Party asked itself one question: “How much longer can we win elections in which everybody is allowed to vote, given the way demographics in the country are trending?” The answer to that question was obviously not a date in the future.
* * *
The only thing that surprised me about Donald’s defense during his second impeachment trial is that he didn’t claim double jeopardy; after all, the January 6 insurrection was merely an extension of the original crime of trying to steal the election, and he’d already been tried once and acquitted. Meanwhile, the jury was composed of victims of the assault as well as, much like in the days of Jim Crow, perpetrators and accomplices. Mitch McConnell had had his eyes on the Georgia Senate runoffs scheduled for January 5, in which two Democratic newcomers had a historic chance to unseat two Republicans, and he needed to keep the base intact and angry. Senators like Texas’s Ted Cruz and Missouri’s Josh Hawley saw a chance to become the next standard-bearer in preparation for presidential runs in 2024; if conspiring to incite an insurrection was the best way to position themselves, so be it.
Whether or not Donald actually believed he had won doesn’t really matter. As is often the case with him, he could both believe and not believe, sometimes at the same time, just as sometimes he knew he was lying about having won and sometimes he thought he was telling the truth. What’s almost certain is that, until the morning of President Biden’s inauguration, Donald thought he had a shot at overturning the election results. The insurrection had given him a much-needed boost, as had the fact that his party, with the exception of the ten House Republicans who’d voted to impeach him, had let him get away with having incited it.
As much as Donald was a symptom of a long-worsening disease in the body of the Republican Party, one of his unique contributions was the laying bare of incivility. People like Cruz and Hawley were free to be as horrible publicly as they’ve always reportedly been privately. No filter, no need to pretend anymore that they care about democracy. They could be as open as they dared about their desire to make sure, through extreme gerrymandering and voter suppression, that Black and Brown people don’t have any rights, or that through regressive legislation and a stacked judiciary LGBTQ people and women don’t have any rights. The precedent had been set. Donald didn’t just break things. He left a road map.
The problem for Republicans, however, is that now that they’ve been given permission, what do they need Donald for? In fact, the last thing in the world Hawley, Cruz, and McConnell want is for Donald to run again. But by enabling and covering for Donald every step of the way, they made it possible for him to retain power—and it turns out that the power he has is over them. Donald didn’t threaten to form a rival political party because he had any interest in doing that. The threat gave him leverage over Republican senators heading into the second impeachment trial. It would continue to give him leverage as long as he managed to stay relevant and they wanted to keep running for office. They are tied to him, not because he did anything for them, but because he accepted their fealty.
Despite the violence, violation, and death that occurred during the January 6 insurrection, of the dozen or so senators who had called Biden’s win into question since it had been announced—including Kelly Loeffler, who campaigned on the Big Lie in the run-up to Georgia’s runoff election—seven voted in favor of rejecting
Pennsylvania’s results and six voted in favor of rejecting Arizona’s.
As early as December 2020, Josh Hawley announced his decision to commit sedition against the United States, saying, “I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws.” In a typically fact-free bit of hypocrisy, he continued, “And I cannot vote to certify without pointing out the unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden.” Anybody who was paying attention to social media during both the 2016 and 2020 elections would know the brazenness of Hawley’s lie. In the days after the insurrection Hawley raised a million dollars off his role in the attempt to overturn the results of a legitimate election. And that’s part of the problem, too: Republicans continue to monetize Donald’s lies for their own purposes.
* * *
In a 2019 poll, 53 percent of Republicans ranked Donald J. Trump as a better president than Abraham Lincoln. A caller to C-SPAN, explaining his rationale, said, “Lincoln only freed the slaves. Yes, that’s a big thing. But what Trump is doing is far greater.” As is often the case with Donald’s supporters, no concrete examples or specifics were given. Like him, they think that everything he does is always just great. Fifty-six percent of Republicans believe Donald bears no responsibility for the insurrection.
The Reckoning Page 11