This is part 3 of the Saving the Court series. I would encourage you to read previous posts, including

• Saving the Court: Announcing the Project (Part 1)
• Saving the Court: How We Got Into This Mess (Part 2)

In this post, I’ll examine the history of Supreme Court reform efforts, beginning with the earliest days of the Court right up until present day.

Constitutional Language

Article III, § I of the United States Constitution creates the Supreme Court and grants to Congress the right to create other courts as they see fit. It reads:

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Article III, § II of the Constitution delineates the jurisdiction of the Supreme Court, which includes:

• Cases involving the United States Constitution and treaties,
• Cases affecting ambassadors and diplomats, and
• Cases involving admiralty and maritime law.

Finally, Article II, § II grants to the Executive the power to appoint Justices to the Supreme Court and other courts that Congress may create, with the advice and consent of the Senate. “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 

Federalist 78 and Brutus XV

In 1788, Alexander Hamilton, writing under the pseudonym “Publius,” in Federalist 78, offered some additional thoughts on the judicial branch of the proposed government.

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Emphasis added)

Hamilton saw the judiciary as an intermediary between the people and the Congress, whose role, among other things, was to keep Congress within the authority assigned to it by the Constitution. Not everyone agreed, and a hearty public debate ensued regarding the judiciary and its relation to the other branches of government, as well as to the people.

By contrast, Robert Yates, an anti-federalist, writing as “Brutus” in Brutus XV, wrote that the framers of the Constitution followed the British by making federal judges independent by granting them their positions during good behavior, but then failed to follow the British model of “instituting a tribunal in which their errors may be corrected.” In other words, Yates felt that the framers had made a grave error in giving judges lifetime appointments (“during good Behaviour”) without also giving the legislature the power to override judicial decision they disagreed with. For Yates, the framers were setting up a government where the judiciary ruled over and controlled the legislative branch, as well as a judiciary that was disconnected from and unaccountable to the people.

“I do not object to the judges holding their commissions during good behaviour. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behaviour, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” 

History of Supreme Court Reform Efforts

When the new government began operating on March 4, 1789, many questions remained, including questions surrounding the judiciary. Article III established the Supreme Court, but the drafters of the Constitution were unable to agree on the creation of inferior courts, what types of cases the federal courts would hear, how the Supreme Court would relate to state courts, and how many Justices would sit on the Supreme Court. Rather than coming to an agreement, in what has come to be known as the “Madisonian Compromise,” the drafters left it to Congress to decide these issues.

The first Congress, which convened in New York in April 1789, immediately set to work crafting legislation to establish the federal courts. A Senate Committee made up of ten senators drafted an act that was then circulated to top lawyers, jurists, and leaders of the day for input. The Senate then set about creating a compromise bill that attempted to balance the concerns of the Federalists, who favored a strong federal judiciary, with those of the Anti-Federalists, who wanted to assure state autonomy. After debate, and several rounds of amendments, the resulting bill passed both the Senate and the House. On September 24, President George Washington signed the Judiciary Act of 1789 into law.

The Act established a six Justice Supreme Court consisting of one Chief Justice and five associate Justices. It also set out the Court’s original and appellate jurisdiction, and it placed the Supreme Court at the top of the hierarchy of the nation’s courts, including superior to state courts. In addition, the Act established thirteen federal district courts, one for each state, as well as one each for Maine and Kentucky, which had not yet become states. Each district court was staffed by one district judge with jurisdiction primarily over admiralty cases and minor federal crimes. The Act also established three circuit courts—eastern, middle, and southern—which were each staffed by a circuit court judge and two Supreme Court Justices who were expected to “ride circuit” to the outlying courts. Both the district court and the circuit courts were primarily trial courts, although the circuit courts were given limited appellate jurisdiction.

The Supreme Court first convened on February 2, 1790, at New York’s Royal Exchange. Chief Justice John Jay gaveled to order the Court, which on that day consisted of just three associate Justices. Two others were unable to attend. Even before the Supreme Court first convened, Congress was already debating reform proposals that sought to restructure it, alter its jurisdiction, and further empower inferior federal courts. More often than not, the reform efforts came up short, but that didn’t stop Congress, or the public, from proposing changes to the judiciary.

The first reform proposal to actually become law was the Judiciary Act of 1801. The Act made several changes to the judiciary, including expanding the jurisdiction of inferior federal courts to allow them to hear all cases arising under federal law; increased the number of district and circuit courts, including adding a new sixth circuit; created sixteen new circuit judgeships; and ended the circuit-riding duties of Supreme Court Justices. The number of Supreme Court Justices was reduced to five upon the next vacancy, which was nominally justified because Justices would no longer have to ride circuit, meaning fewer Justices were needed. However, the truth is it was almost certainly done for political reasons.

Sitting President John Adams, a Federalist, was not running for re-election, so Congress, where Federalists were a majority, did not want to risk a President from another party having the ability to add a Justice to the Supreme Court. However, contrary to popular belief, the change in the number of Supreme Court Justices was not motivated by Thomas Jefferson’s Presidential victory. In fact, the Act was debated and passed months before Jefferson and his fellow Democratic-Republicans swept into office.

After just one year, the Judiciary Act of 1801—along with nearly all of its reforms—was repealed and replaced by the Judiciary Act of 1802. The new Act reversed everything the Act of 1801 implemented, with the exception of adding a sixth circuit. The number of Supreme Court Justices was restored to six, and for the first time, the number of Justices corresponded to the number of federal circuits.

Marbury v. Madison

William Marbury was one of forty-two people appointed as a Justice of the Peace for the District of Columbia and Alexandria, Virginia by President Adams in the waning days of his administration. All appointees were confirmed by the Senate, and all but four of those appointments were processed by John Marshall, who was serving simultaneously as Secretary of State and as the newly confirmed Chief Justice of the Supreme Court.

When Thomas Jefferson became the third President of the United States, he instructed his new Secretary of State, James Madison, to hold all commissions that had not yet been processed. One of those four appointments was for William Marbury, who ultimately sued under a writ of mandamus, asking the Court to force Madison to deliver his commission.

In Marbury v. Madison (5 U.S. 137), the Court decided that it could not grant the petitioner’s request because the law that gave the Court jurisdiction to rule in the case was itself unconstitutional. Chief Justice John Marshall spoke for the Court, establishing the Court’s authority to declare acts of Congress unconstitutional. Neither the Constitution nor legislation gives the Court this power explicitly. Instead, Marshall found that the Constitution implicitly gave the power of judicial review to the Court.

Although the Constitution does not specifically confer the power of judicial review on the Court, Chief Justice Marshall (and others) saw in the combined force of Article III, The Supremacy Clause of Article VI, longstanding Anglo-American legal practice, and the nature of the United States Constitution, that judicial review was within the Court’s power. “Chief Justice Marshall established judicial review as a principle of American law, claiming for the Court—in the name of the Constitution and the people—the power ‘to say what the law is.” (Presidential Commission on the Supreme Court Of The United States 2021, 41)

“It is emphatically the province and duty of the judicial department to say what the law is. . . So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” (Marbury v. Madison 1803)

Post-Marbury Efforts to Reform the Supreme Court

In 1807, the number of Justices was once again increased to seven to correspond with the addition of a seventh federal circuit. If it wasn’t obvious previously, it became obvious in 1807 that the number of Supreme Court Justices and the number of federal circuits were understood as necessarily linked.

As the country grew and expanded westward, the need for additional federal courts expanded. The Judiciary Act of 1837 increased by two the number of federal circuits, as well as the number of Supreme Court Justices. While the addition of circuits was needed, the timing was purely political. The Democratic Congress passed the Judiciary Act of 1837 on March 3, 1837, the final day of President Andrew Jackson’s term in office, giving Jackson the opportunity to appoint two additional Justices before he returned home to Tennessee.

The succession of slave-holding states and the beginning of the Civil War prompted further reform of the judiciary. Not only was the country at war, but half of the Justices on the Supreme Court at the time were from southern states. President Abraham Lincoln knew he had to make changes to the Judiciary in order to make the Court more friendly to his agenda.

In an 1861 address, President Lincoln contended that the country had outgrown its present judicial system, and he called for Congress to sever the link between the number of circuits and the number of Justices on the Supreme Court. Congress only partially followed Lincoln’s lead. As requested, in 1862 and 1863, Congress reorganized and increased the number of federal circuits to ten. But rather than accede to Lincoln’s wishes, they also added a tenth seat to the Supreme Court.

In 1866, with the Civil War ended and the country reunited, Congress once again undertook court reform. With the Judicial Circuits Act of 1866, the Republican majority in Congress reduced the number of circuits from ten to nine and mandated that the number of Supreme Court Justices be gradually reduced from ten to seven. This not only de-coupled the traditional linkage between the number of circuits and the number of Supreme Court Justices, it also accomplished the political goal of preventing incoming President Andrew Johnson, a Democrat, from appointing any Justices to the Court.

In the years during and shortly after the Civil War, the federal judiciary experienced a profound expansion of jurisdiction. The most important changes were:

1. Removal Jurisdiction – Allowed certain cases that began in state court to be taken to federal court;
2. Writ of Habeas Corpus – Allowed federal courts to issue writs on behalf of prisoners held by state authorities in violation of federal law; and
3. Federal Question – Also known as “arising under” jurisdiction.

As a result, in 1890, the Supreme Court was inundated with cases. The number of cases rose from 310 in 1860 to more than 1800 just thirty years later. Calls for reform to the Court were plentiful, with proposals for an 18-member Court, a new level of federal appellate court, and splitting the Supreme Court into three divisional panels among the recommendations.

In 1891, Congress passed the Circuit Court of Appeals Act, also known as the “Evarts Act.” While resisting calls to increase the size of the Supreme Court, the Act eliminated the duty of Supreme Court Justices to ride circuit, and created intermediate courts of appeal, which drastically reduced the case load of the Supreme Court.

Calls for reforms continued, and in 1912, in his campaign for the presidency, Theodore Roosevelt proposed a new law that would give the people the power to overrule court decisions that found legislation unconstitutional. Due to pushback, Roosevelt limited his reform recommendation to just state courts, but behind closed doors, he confided that he’d like the reform measure to apply to federal courts as well.

Roosevelt’s campaign proved unsuccessful, but progressive members of Congress continued to push the idea of recalling court decisions. Senator Robert Owen (D-OK) proposed legislation that would allow Congress to remove lower federal court judges and Supreme Court Justices with a simple majority vote, and Senator Robert LaFollette (R-WI) proposed a Constitutional amendment that would allow Congress to override court decisions that invalidated legislation. Neither proposal succeeded, but they are both illustrative of the ongoing debate over reforms of the judiciary.

FDR’s Court Packing Plan

Perhaps the most famous Court reform proposal—at least when it comes to increasing the size of the Court—occurred in 1937 by President Franklin D. Roosevelt. To fully understand Roosevelt’s plan to transform the Court, it’s necessary to put it into context.

Roosevelt was elected to the presidency in 1932 while the United States was in the throes of the Great Depression. In campaigning for the nation’s highest office, Roosevelt promised Americans a “New Deal” designed to boost the national economy and reverse the depression that had gripped the nation. The plan called for greater government involvement in the economy than had been common previously.

After being elected, Roosevelt and the 73^rd Congress passed the Economy Act, a relatively minor piece of legislation that may have had a big impact. The Economy Act cut many government salaries, including cutting in half the pensions received by retired Supreme Court Justices. The lower retirement benefits resulted in Supreme Court Justices William Van Devanter and George Sutherland each curtailing their retirement plans.

There’s no way to know for certain if the Economy Act led Van Deventer, Sutherland, or other Justices to hold a grudge against Roosevelt, although some scholars have posited that it did play a role. In the very least, the Economy Act kept Justices on the Court that were unfriendly to the President’s legislative agenda, and prohibited him from appointing more sympathetic Justices.

The Supreme Court in the early and mid-1930s was made up of four conservative Justices (Willis Van Devanter, George Sutherland, James Clark McReynolds, and Pierce Butler), known as “The Four Horsemen;” three liberal Justices (Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone), dubbed the “Three Musketeers”; and two “swing votes” (Chief Justice Charles Evans Hughes and Owen Roberts). Early in Roosevelt’s tenure, the Court was decidedly opposed to the President’s New Deal legislation.

In 1935, the Court ruled against Roosevelt in:

• Railroad Retirement Board v. Alton Railroad Company (295 U.S. 330) – Case challenging the constitutionality of the compulsory retirement and pension system for all carriers subject to the Interstate Commerce Act;
• Humphrey’s Executor v. United States (295 U.S. 602) — Case regarding whether or not the President had the authority to remove executive officials of a quasi-legislative and quasi-judicial administrative bodies for reasons other than those allowed by Congress;
• Louisville Joint Stock Land Bank v. Radford (295 U.S. 555) – Case involving the constitutionality of the Frazier-Lempke Farm Bankruptcy Act;
• Schechter Poultry Company v. United States (295 U.S. 495) – Case involving the constitutionality of the National Industrial Recovery Act of 1933; and
• United States v. Butler (297 U.S. 1) – Case involving the taxing power of the federal government that found the Agricultural Adjustment Act to be unconstitutional.

The decisions in Humphrey’s Executor, Louisville Joint Stock Bank, and Schechter Poultry Company were all announced on what has come to be known as “Black Monday” (May 27, 1935), and all decisions were 9-0.

Roosevelt was angry. Not only did he feel that these decisions were rendered out of spite, but he feared that the Court stood in the way of him fully implementing his New Deal legislation, a prospect he believed would further damage the country’s economy.

In November 1936, Roosevelt won an overwhelming victory in the Presidential Election, cementing his mandate to move forward with more New Deal legislation. One month later, in December 1936, the Supreme Court heard oral arguments in the case of West Coast Hotel Co. v. Parrish (300 U.S. 379). The case involved the constitutionality of a minimum wage law and was very important to the future of Roosevelt’s New Deal legislation.

The President feared that the Court would continue to block his legislation, so on February 5, 1937, he introduced the Judicial Procedures Reform Bill of 1937, which became known colloquially as the “Court packing” plan. On March 9, 1937, Roosevelt justified his plan in a Fireside Chat.

Roosevelt claimed that his plan to expand the Court was designed to relieve overcrowded court dockets. In reality, Court expansion was a way for Roosevelt to head off his concerns that the Court would strike down his Fair Labor Standards Act, the National Labor Relations Board, and the Social Security Act, legislation he and the Democrats in Congress had fought so hard to pass.

Roosevelt’s plan called for the addition of one Supreme Court Justice, up to a maximum of fifteen, for every one that stayed on the Court for six months past their seventieth birthday. This plan encouraged, but did not require, Justices to retire when they reached an age that is usually associated with a slower lifestyle and, in some cases, reduced mental capabilities. The plan, if approved, would have allowed Roosevelt to add six Justices, since Chief Justice Hughes, and Justices Brandeis, Van Devanter, Sutherland, McReynolds, and Butler were all past their seventieth birthdays.

Following Roosevelt’s Fireside Chat, support for his Court expansion plan received lukewarm support among voters, and bi-partisan opposition in Congress. Although Roosevelt’s Court expansion legislation was stalled in Congress, things in the Court started to break Roosevelt’s way. On March 29, 1937—which came to be known as “White Monday”—the Court handed down three decisions that bolstered Roosevelt’s New Deal effort.

• West Coast Hotel Co. V. Parrish (300 U.S. 379) – The Court upheld the constitutionality of minimum wage legislation;
• Wright v. Vinton Branch (300 U.S. 440) – The Court upheld the constitutionality of the newly passed Frazier-Lempke Act as it concerned farmer bankruptcy; and
• Virginian Railway Co. v. Federation (300 U.S. 515) – The Court upheld the constitutionality of the revamped Railway Labor Act.

History has concocted a narrative, commonly known as the “switch in time that saved nine,” that had Justice Roberts changing his vote in an attempt to defeat Roosevelt’s Court packing plan. The truth is, Roberts voiced his desire to support the constitutionality of minimum wage laws once oral arguments in the Parrish case were complete, months before Roosevelt introduced his Court packing plan. In other words, Roberts’ vote was based on his judicial philosophy, not political expediency.

Justice Van Devanter retired in May 1937 allowing Roosevelt to appoint a Justice to the Court friendly to his legislation. With Van Devanter gone and Roberts voting with the Court’s liberal wing, the President’s New Deal legislation was safe. In addition, the Court packing plan, which was never passed into law, became a footnote in history.

Post-World War II Court Reform Efforts

In 1956, in the wake of the Supreme Court’s decision in Brown v. Board of Education (347 U.S. 483), several Constitutional amendments were proposed to try to undo what the Court had done in Brown. Among the proposals was an amendment making the Senate the final court of appeal and giving it the authority to review decisions of the Supreme Court; an amendment setting term limits for federal judges; a procedure that allowed Court decisions that weakened states’ rights to be overturned if one-fourth of the states disapproved; a “Court of the Union” made up of state supreme court judges with the power to review and overturn decisions made by the Supreme Court involving states rights; and an amendment reserving to the states the sole and exclusive jurisdiction over cases involving the public schools of the various states. None of these proposals were passed.

In 1963 and 1964, the Court heard a series of six cases—known collectively as the Reapportionment cases—that involved the makeup of legislative districts in various states. The Court’s decisions effectively invalidated the legislative districts in every state. Rather than being apportioned by political subdivisions, such as the county, the Court said that the districts had to be based on equal population districts. In the aftermath of the decisions, Illinois senator Everett Dirksen led a movement to amend the Constitution to allow the Senate to override Supreme Court decisions, but the effort ultimately fell short.

During the Democratic Party Primary leading up to the 2020 Presidential Election, court reform became a hot topic again. Democrats felt that Republicans had stolen at least one, maybe two, Supreme Court nominations from them, and they were anxious to support just about any proposal that would help turn the tables. Candidates such as Sen. Kamala Harris (D-CA), Mayor Pete Buttigieg, and Sen. Elizabeth Warren (D-MA) were all open to adding seats to the Supreme Court and applying term limits to Supreme Court Justices. For his part, Candidate Joe Biden refused to support either expanding the Court or term limits. Instead, he committed to creating a commission of legal experts to study the various reform proposals to see if any of them could or should be implemented. It’s highly likely that forming a committee to study the issue was a way for Biden to avoid committing to any particular course of action. Regardless, he was good to his word, and on April 9, 2021, President Biden signed Executive Order 14023 establishing the Presidential Commission on the Supreme Court of the United States.

Throughout our nation’s history—in fact, starting before the Supreme Court even opened for business—there have been calls for reforms to the judiciary generally, and the Supreme Court specifically. The reforms we consider today are not new. What is new is the highly partisan Court, as well as the highly partisan nomination and confirmation process. In the next post, I’ll look at the nomination and confirmation process, and examine proposals to make it fairer and more effective.

This is part 2 of the Saving the Court series. I would encourage you to read previous posts, including:

 

• Saving the Court: Announcing the Project (Part 1)

In this post, I’ll examine how we got into the situation we find ourselves in today. It started several years ago, and has only gotten worse over time.

——————–

Supreme Court Justice Antonin Scalia died in his sleep on February 13, 2016, at the Cibolo Creek Ranch in Shafter, Texas. Scalia was at the ranch at the invitation of John Poindexter, a businessman and owner of the ranch, to hunt quail. The arrangement was a bit unusual. One of Poindexter’s subsidiary companies, the Mic Group, had recently been before the Supreme Court in an age discrimination case. The Court had denied certiorari, securing the Mic Group’s victory in the lower court.

Scalia’s death set off a chain of explosive events that transformed the Supreme Court over the following four years and raised calls for Court reform. But it was not the ethical implications of Scalia’s death that led to the upheaval. Instead, it was the actions taken by the Senate in the aftermath of the Justice’s death that reconfigured and set off a political firestorm that still rages today.

When Scalia died, President Barack Obama had just begun the final year of his second term in office. The 2016 Presidential Election was nearly nine months away, and Obama’s term would not end for another eleven months. Obama nominated Merrick Garland, a judge on the United States Court of Appeals for the District of Columbia, to replace Scalia. Garland was considered a centrist, and he was well-respected in legal circles, having received the American Bar Association’s highest rating.

By all accounts, Garland was about as good a nominee as the Republicans in the Senate could have hoped for from a Democratic President. He was not the extreme liberal some had feared. Even so, Senate Majority Leader Mitch McConnell (R-KY) notified President Obama that the Senate would not take up the nomination of Garland. His public justification for refusing to hold hearings on Garland’s nomination was that voters should have a voice in who is nominated to the nation’s highest court by casting their ballot in the upcoming Presidential Election. Privately, McConnell knew that no one could force him to consider Garland’s nomination. For him, that was justification enough.

Article II, § 2, Clause 2 of the United States Constitution gives the President the power to appoint Justices of the Supreme Court, with the advice and consent of the Senate.  Traditionally, even if the majority party in the Senate was not in favor of a nominee, they would carry out their “advise and consent” duty. What McConnell did in refusing to even consider the President’s nomination so far in advance of the next Presidential Election was unprecedented. Democrats screamed foul, and the President continued to push his nominee. McConnell was unmoved. He knew that neither the President nor Democrats in the Senate could force him into scheduling hearings on Garland’s nomination.

McConnell waited out Obama, and in November 2016, Donald J. Trump was elected President. Less than a month into his first year in office, Trump nominated Neil Gorsuch, a conservative jurist serving on the United States Court of Appeals for the Tenth District, to replace Scalia. Although many Democrats voted against Gorsuch because they felt Garland was the rightful nominee, Trump’s nominee was nonetheless approved 54-45 by the Senate.

When Justice Anthony Kennedy announced his retirement in June 2018, Trump had the opportunity to appoint another Justice to the Supreme Court. This time he selected Brett Kavanaugh, a judge serving on the United States Court of Appeals for the District of Columbia. Kavanaugh’s confirmation hearing turned into a spectacle. College Professor Christine Blasey Ford accused Kavanaugh of sexually assaulting her in 1982 when they were both in high school. Democrats lamented the White House’s refusal to provide hundreds of thousands of documents pertinent to Kavanaugh’s record, and complained that the Department of Justice failed to fully investigate charges leveled against Kavanaugh. Protesters interrupted the proceedings screaming “Women’s rights are human rights” and “Protect women, be a hero.” As for Kavanaugh, he adamantly defended himself from sexual assault charges, and unequivocally confessed his love for beer. Even by modern day standards, the hearing was highly charged and highly partisan. In the end, Kavanaugh was confirmed, and Republicans added another conservative to the Court.

With Neil Gorsuch replacing Antonin Scalia, the Supreme Court saw one conservative Justice replace another. Kavanaugh’s replacement of Kennedy was a little different. Kennedy was a swing vote, sometimes siding with conservatives, sometimes with the liberal wing of the Court. Kavanaugh, on the other hand, has proven to be a reliable conservative vote. To Democrats’ dismay and Republicans’ joy, the Court was becoming more conservative.

Then, on September 18, 2020, Justice Ruth Bader Ginsburg died following a long battle with cancer. The diminutive Ginsburg was a liberal titan known for her fiery dissenting opinions. Her death was a worst-case scenario for Democrats and liberal Court watchers. For years, they had hoped, even encouraged, Ginsburg to retire so President Obama could appoint a replacement. Their fear was that Ginsburg, who was elderly and in failing health, would die during a Republican administration, allowing the President to replace her with a conservative Justice.

Of course, Democrats’ worst fears were realized when Ginsburg passed away during the waning days of the Trump Administration. When she died, the 2020 Presidential Election was less than two months away. Polls were not looking good for President Trump, and Republicans feared he would lose the November election.  Of course, Mitch McConnell had set a precedent in 2016 when he refused to hold confirmation hearings on Merrick Garland, Obama’s Supreme Court nominee, because a Presidential Election was coming up later that same year. Now, there were less than two months until the election.

It did not matter. As mourners gathered to pay tribute to Ginsburg on the evening of her death, and President Trump was on Air Force One returning from a campaign rally in Minnesota, McConnell sprang into action. He contacted the President to inform him that the Senator would be issuing a statement announcing Ginsburg’s seat would be filled as quickly as possible, and he encouraged the President to nominate Amy Coney Barrett.

Democrats were apoplectic. How could McConnell agree to hold hearings on a Supreme Court nominee less than two months before an election, especially after how he justified not holding hearings on Garland? McConnell absorbed the accusations of hypocrisy and moved forward with the confirmation hearings. Barrett was confirmed and the Supreme Court stood at six conservative and three liberal Justices. At a time when national politics were moving leftward and voters were about to elect a Democrat to the White House by an overwhelming margin, the Supreme Court was solidly conservative, and it appeared it would remain that way for years to come.

This phenomenon—society moving left while the Supreme Court moves right—does not bode well for the future. When voters hold one set of political beliefs while the highest court in the land rules based on a different, even opposite, set of beliefs, the Supreme Court loses its legitimacy.

To put a slightly finer point on this idea that popular opinion is moving in an opposite direction from the opinion of the Court, it is important to remember that five of the six conservative Justices (Roberts and Alito appointed by George W. Bush, and Gorsuch, Kavanaugh, and Barrett appointed by Donald J. Trump) were appointed by Presidents who lost the popular vote. Additionally, four of the six conservative Justices (Thomas, Gorsuch, Kavanaugh, and Barrett) were confirmed by Senators who combined, represented less than half of the U.S. population.

To make matters worse, the confirmation process for Supreme Court Justices has become completely dysfunctional. It was not that long ago that confirmation of a President’s Supreme Court nominee, except in rare instances, was a given. It was common for Senators from both parties to support the nominee to the Court. In recent years, the opposite has been true. Drama routinely surrounds the nomination, and the confirmation vote is more often than not played out along party lines.

Charges of judges “playing politics” and staying beyond their most productive years have also been leveled. Prominent scholars accuse Supreme Court Justices of naked partisanship, and they caution that the Court is turning into a “supreme gerontocracy,” where members stay on the bench into their years of “mental decrepitude.”

All of these issues add up to a Court that is experiencing a crisis of legitimacy. But is the legitimacy crisis aimed at the Supreme Court writ large or is it a crisis that only afflicts the current makeup of the Court?

I think it is fair to say that the Supreme Court as an institution enjoys wide-spread support; what is often referred to as diffuse support. Generally speaking, Americans like having a high court that makes final decisions on legal issues.

In fact, Judge Irving Kaufman wrote an essay in 1984 that spoke to the public’s willingness to accept and honor Court decisions, even when they disagree with those decisions, provided the Court’s decision makes it clear that the majority was acting in good faith. “When, in the public mind, the Court is functioning as an apolitical, wise and impartial tribunal, the people of our nation – even those citizens to whom the results may be anathema – have evinced a willingness to abide by its decisions.” What goes unsaid is that the public will not accept and honor decisions made by the Court that are political, unwise, or partisan in nature. That appears to be where we are with today’s Court.

So, we’re dealing with a Court that, as an institution, enjoys wide support from the American public. But the make up of this particular Court–the individual Justices as opposed to the institution–is currently experiencing record high disapproval ratings.

What’s to be done? Most observers agree that some reforms need to be made to the Court. Of course, there is a wide disparity of opinion about which reforms should be implemented. In the coming weeks, I’ll examine the various reform proposals and do my best to determine which will help restore the Court’s legitimacy, and which won’t. As I do, I will do my best to keep two caveats in mind:

 Caveat #1: Don’t Let Perfect Be the Enemy of Good

All too often, analysis of proposals to reform the Supreme Court are focused more on the problems with those proposals than with the problems that already exist with the Court. To be certain, it is important to examine the pros and cons of any proposal, but it is equally important to recognize that the Supreme Court currently suffers from serious issues. We cannot fix those problems if we hold out for the perfect solution. The truth is, there are no solutions—no reform proposals—that do not suffer from issues of their own. If there were, we would have implemented them long ago. None of the reform proposals examined herein come without a downside. Even so, I will endeavor to judge these proposals on their merits rather than dismissing them because they are not perfect solutions.

Caveat #2: Supreme Court Decisions Are Not Divinely Inspired

Let me offer one further caveat. The Supreme Court is often viewed as sacrosanct. The Presidency and Congress are obviously political. They both often ooze partisanship. Not so with the Supreme Court, at least not on the surface. We want to view the Supreme Court as being above the partisan fray, and we want to view their decisions as above reproach. Sadly, neither is true.

First, although Supreme Court Justices are not elected, they are nominated and confirmed as part of a political process. The political leanings of the Justices are very much germane to whether or not they get nominated and confirmed. Granted, the politics of the individual members of the Court are normally not out on display for everyone to see, but their political beliefs still play an important role in the job they do on the Court.

Second, Justices of the Supreme Court are human. Like anyone else, they have their flaws and foibles, their strengths and weaknesses. We would like to think that their decisions are infallible, but they are not. As Justice Scalia famously said in Cruzan v. Missouri Department of Health (497 U.S. 261) (1990) (Scalia, J. , concurring), “nine people picked at random from the Kansas City telephone directory” are no less all-knowing or insightful than the Justices of the Supreme Court.

To put it another way, Supreme Court decisions are not divinely inspired. They are the work of human beings who do the best they can, but often fall short. Members are not omnipotent, and we should not expect them to be. However, we should endeavor to structure the Court and implement policies for it that get us as close to omnipotence as possible, recognizing that we will never fully realize that goal.

Before jumping into the various reform proposals, in the next post, I want to spend some time reviewing the history of Supreme Court reform efforts to better understand what reforms have been tried before, and what might be possible in the future.

The Supreme Court term ended this past week with the announcement of several controversial decisions. Along with the end of the term came word that the court’s approval rating had hit an all-time low. To be sure, Americans are not supportive of many of the decisions being made by the court. But more importantly, they are not happy with the way the court is reaching those decisions, or how the justices are conducting themselves outside of court.

This is an important distinction. In recent months, Chief Justice John Roberts and a few of the associate Justices, have bemoaned the fact that the Court’s approval rating has plummeted, commenting that it is the Court’s job to make difficult decisions and that the public should not lose faith in the court simply because they don’t agree with the decisions. However, the Justices are smart enough to understand that it isn’t their decisions that are creating a legitimacy crisis for the court. It is the way those decisions are being reached, as well as revelations of serious ethical lapses by a handful of Justices who have used their positions on the Court to enrich themselves.

For instance, during this past term, the court ruled on one dispute where the respondents likely did not have standing to bring the case (Biden v Nebraska). In that case, involving student loan forgiveness promulgated by the Department of Education under the HEROES Act, the organizations that brought the original suit were not impacted by the Act and did not suffer any damages as a result of its pending implementation. Even so, the majority overlooked this fact and ruled on the case anyway, giving the appearance that that the majority felt the ends justified the means, even if that meant overlooking a crucial flaw in the case.

In another case, 303 Creative v Colorado, there was no actual dispute. The entire case was hypothetical and was based on a lie. The plaintiff, Lorie Smith, was a web developer who was considering adding wedding websites to her business’s offerings. Importantly, she had never actually created any wedding websites. She feared that if she expanded her business, she might be called on to make a website for a same-sex wedding, something she opposed. She claimed that she had received a request from a man who was potentially interested in having her design a website for him and his future husband. However, when journalists reached out to the man who allegedly sent the request, they found out that not only had he not sent it, but he was married to a woman and had been for 15 years. Again, the majority ignored the facts in order to reach a decision that corresponded with their deeply held political beliefs. As Justice Elena Kagan wrote in her dissent, not only was the case not ripe for adjudication by the court, but it was actually unconstitutional for the court to rule on it.

And in the affirmative action case of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Justices in the majority were utterly intellectually dishonest in their opinion, justifying it with half-truths and inaccurate history. It wasn’t the decision that rubbed people the wrong way, although they certainly disagreed with it. It was more the dishonest way the Court reached the decision. To many observers, it was obvious that the majority’s decision was based on politics more than law.

In addition to the Justices’ tortured, partisan logic in these cases, revelations of unethical behavior by many of the justices has helped create the collapse of trust in the court. Pro Publica reported on Justice Clarence Thomas and Justice Samuel Alito, the Court’s two most extreme conservative justices, accepting private air travel, exotic yacht vacations, and expensive lodging at exclusive resorts from billionaires who had business before the Court.

In Thomas’ case, he also allowed his benefactor to pay for his grand-nephew’s private school tuition and purchase his mother’s home, while letting her live there rent-free, and then failing to report the gifts. In addition, far right political donor Leonard Leo funneled money to Thomas’ wife, Ginni, and went to great lengths to conceal the payments. Again, Thomas failed to disclose the money paid to his wife.

Justice Neil Gorsuch sold a piece of land he had been unable to sell for two years, to an attorney who routinely practiced before the court, just nine days after being sworn in as a Justice. Gorsuch failed to report the identity of the buyer on his government ethics disclosure form.

And the Chief Justice’s wife was paid more than $10 million to act as a recruiter for high-powered law firms that practice before the Court. While this behavior, as well as the behavior involving the other Justices may have been technically legal, it’s ethically questionable, and it most certainly creates the appearance of wrong-doing, especially when the Justice’s themselves fail to report it.

I have been observing the Court for several years. In fact, while studying for a master’s degree in political science, my emphasis was on the Supreme Court, particularly in efforts to reform it. I’ve never seen a Court that was so broken and which had so lost the trust of the American people. Polls conducted by Quinnipiac and Marquette University Law School confirm that the Court’s approval rating is lower now than at any time in the past.

There are lots of reasons for this sad fact. First, the way that the court was built, using highly unusual political maneuvering to prevent a Democratic President from appointing Justices and instead handing that privilege to a  Republican President, make those appointments illegitimate in the eyes of a lot of Court observers’. The fact that the electorate as a whole has become more liberal at the same time the Court has become more conservative has also helped to damage the public’s perception of the Court.

The ethical problems experienced by several of the Justices is another reason that the Court’s legitimacy has been called into question. There has been one revelation after another of Justice’s using their position for personal gain.

And finally, the perception that the Court’s conservative wing has used the Court to implement their own political agenda, manipulating cases on the way to achieve that goal, has created a collapse of trust and a crisis of legitimacy for the Court, and by extension, for our nation. According to an ABC News poll conducted in early July 2023, 53% of respondents said they felt the Court was making decisions based on politics rather than the law. Think about that.  Based on the poll, more than half of citizens feel the Court is following politics rather than the law when reaching decisions that impact the daily lives of millions of Americans. That is the epitome of a legitimacy crisis for the Court.

In order to save the Court, reforms are needed. Most people agree with this statement. What they don’t agree on is which reforms are needed or how those reforms should be implemented. Over the next several weeks, I’m going to take a look at proposed Court reforms, examine the arguments for and against those reforms, and give you my opinion on which ones, if any, should be implemented. As much as possible, I will keep politics out of the discussion. Instead, my focus will be on how, if at all, the proposed reform can rebuild trust in the Court and restore legitimacy to the institution and it’s decisions.

In the next post, I’ll look at how we got to this point. I want to make sure everyone understands how we ended up in our current predicament. In the weeks to follow, I’ll look at several proposed reforms that have been offered to fix the Court and restore it to a trusted, indispensable part of our federal government.

What is Juneteenth all about? I’m glad you asked. In a word, Juneteenth is about freedom.

“Freedom is the goal for everyone. Not just black people. Not just Texans. Freedom for everyone.” — Opal Lee

I was in my fifties the first time I ate at a Waffle House. Until then, Waffle House, to me, was a place where addicts, the homeless, and the down-and-out ate. I know that doesn’t make sense. Heck, generally speaking, the homeless don’t normally eat their meals in restaurants. I don’t mean to besmirch anyone. I just didn’t think Waffle House restaurants were for me. Boy, was I wrong.

I love breakfast food, and Waffle House is all about breakfast food. Eggs any way you want. Bacon cooked to order. Sausage patties AND sausage links. Giant waffles. And best of all, hash browns.

Waffle House hash browns are like a super food. After eating them, I feel like what Popeye must feel like after eating spinach. The thing that makes Waffle House hash browns so special is the numerous ways you can order them. According to Waffle House, there are at least 768 different combinations available. So, if you’re not educated on the many options you have when you order your hash browns, you could miss out on  a magical (okay, quasi-magical) experience.

Your first, and most basic, option is to order your hash browns plain. You’ll get grilled, crispy, golden, julienned potatoes with no adornments. They’ll be good, but you’ll be missing out on all of the great toppings Waffle House offers. But before you consider the many topping options, it’s important to learn the unique Waffle House lingo. For instance:

• Smothered — Sautéed onions grilled in butter.
• Covered — Melted American cheese.
• Chuncked — Grilled diced hickory smoked ham.
• Diced — Grilled diced tomatoes.
• Peppered — Spicy jalapeno peppers.
• Capped — Button mushrooms sautéed in butter.
• Topped — Bert’s Chili, a combination of chili beans, Jimmy Dean sausage, tomatoes, and onions.
• Country — Sausage gravy.
• All the Way — All eight topping choices.

I’ll be ordering my Waffle House hash browns smothered, capped, and covered. How about you?

STILL HAVEN’T FOUND WHAT I’M LOOKING FOR

The word “fascism” gets thrown around a lot these days. Often, when someone uses the word, they use it incorrectly. The truth is, most people don’t actually know what the word “fascism” means. They often use the word to describe someone or something they don’t like, but “fascism” has an actual definition. And in many cases, that definition is much different than what people think it is.

At it’s most basic, Dictionary.com defines “fascism” as:

1. (sometimes initial capital letter) a governmental system led by a dictator having complete power, forcibly suppressing opposition and criticism, regimenting all industry, commerce, etc., and emphasizing an aggressive nationalism and often racism.
2. (sometimes initial capital letter) the philosophy, principles, or methods of fascism.
3. (initial capital letter) a political movement that employs the principles and methods of fascism, especially the one established by Mussolini in Italy 1922–43.

Writer Robert Paxton, in his 2004 book, The Anatomy of Fascism, defines “fascism” like this:

“Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victim-hood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.”

In the The United States Holocaust Museum, a poster hangs on the wall listing fourteen signs of fascism. Those fourteen signs are:

1. Powerful and continuing nationalism
2. Disdain for human rights
3. Identification of enemies as a unifying cause
4. Supremacy of the military
5. Rampant sexism
6. Controlled mass media
7. Obsession with national security
8. Religion and government intertwined
9. Corporate power protected
10. Labor power suppressed
11. Disdain for intellectuals and the arts
12. Obsession with crime and punishment
13. Rampant cronyism and corruption
14. Fraudulent elections

The following video gives a bit more insight into each of the fourteen signs of fascism:

Hitler and Mussolini are the two most well known fascists, but not every fascist leader is as bad or well known as the big two. In fact, fascism should be thought of as a spectrum. Hitler and Mussolini would be on one end of the spectrum, while fascist leaders like Joseph Stalin in Russia, Francisco Franco in Spain, and Silvio Berlusconi in Italy are sprinkled throughout the rest. Likewise, men like Vladimir Putin in Russia and Victor Orban in Hungary, both of whom are currently leading fascist regimes, are also on the fascist spectrum.

While the severity of the fascism may be slightly different, many of the tactics being used are the same. For instance, HItler and Mussolini wore military uniforms, while Putin and Orban wear expensive, tailored business suits, but regardless of their dress, they all marginalize “others” (Jews, gays, racial and ethnic minorities); they all preach a gospel of nationalism, often called “patriotism”; they all use the power of the church to promote their agendas; they all are corrupt, holding themselves and their cronies as above the law; and they all turn to violence to keep citizens in check and encourage loyalty to the cause.

In the United States, fascism is on the rise. I won’t name names. I’ll leave it to the reader to draw their own conclusions. To determine who is showing fascistic (or authoritarian) tendencies, ask these questions:

• Is the political leader or party pushing a nationalist agenda? Do they support “American Exceptionalism,” the idea that the United States is better and/or more favored by God than other nations? Do they distinguish “true Americans” from others, even though those others are also citizens of the United States? Do they often wrap themselves in the flag, even while pushing for unconstitutional, anti-democratic laws?
• Is the political leader or party advocating for taking away rights citizens have enjoyed for years? Are they targeting certain groups, such as women or racial minorities, in their quest to reign in the rights enjoyed by Americans?
• Is the political leader or party targeting certain individuals or groups, referring to them as “enemies of the state” or “not true Americans?” Does their quest to target and dehumanize these groups or individuals become party orthodoxy?
• Does the political leader or party elevate the military (and, often, military veterans), to a special status in society? Do they claim special rights and privileges for the military, not because of who they are or their behavior, but solely based of their association to the military? Do they pay lip service to military members, often while simultaneously reducing their military benefits?
• Does the political leader or party threaten or resort to violence to achieve their aims? Are they unusually outspoken about violence (or perceived violence) when perpetrated by their political enemies, but forgiving, even supportive, when done by their political supporters? Do they view the military and police as existing to carry out their political agenda and to thwart their opponents agenda?
• Does the political leader or party favor males over females? Do they grant more legal authority or agency to men than woman? Do they view woman as second class citizens, not deserving of the same rights as men?
• Does the political leader or party favor certain mass media platforms over all others. Do they have a symbiotic relationship with certain platforms, amplifying messages of one another? Do they try to control or discount the work being done by those platforms they don’t favor? Do they refer to certain platforms as “enemies of the state” while elevating their preferred platform?
• Does the political leader or party use national security as a pretext for any number of measures that reduce the freedoms citizens have traditionally enjoyed. Do they view all interactions and behaviors through the lens of national security? Does national security trump all other considerations?
• Does the political leader or party intermingle their religious beliefs with their politics? Do they ignore the separation of church and state, instead supporting laws based on their personal religious beliefs? Do their politics reflect a favored religious doctrine, often dismissing or marginalizing other religious doctrines.
• Does the political leader or party use a rhetoric of grievance, portraying themselves or their supporters as victims of their political opponent’s “radical agenda?” Do they view their position as one of righting past wrongs? Do they exaggerate past slights, either real or imagined? Do they focus on retribution for their supporters rather than working for justice for all Americans?
• Does the political leader or party give special rights and privileges to corporate entities? Do they push an agenda favorable to corporations, often in exchange for campaign donations? Do they treat corporations as individuals, granting to them the same (or expanded) rights traditionally enjoyed by individuals? Do they expect (and usually get) support or silent loyalty from these corporations?
• Does the political leader or party favor corporations over individual workers? Do they make it easier for corporations to fire or mistreat workers? Do they oppose collective bargaining agreements designed to improve worker pay and safety? Do they support eliminating regulations designed to improve working conditions and safety for workers?
• Does the political leader or party oppose or ignore expertise? Do they rely on opinions from political fellow travelers rather than researchers and academics? Do they oppose government financial support for the arts? Do they hold a liberal arts education in low regard? Do they support a ban on books that they don’t like? Do they view diversity in art and opinion as a threat to their world view?
• Does the political leader or party hold themselves out as being tough on crime? Do they often support locking people up without due process and advocate “throwing away the key?” Is their “go to” strategy for behavior they don’t like to criminalize it? Is their obsession with crime and punishment usually reserved for people not like them?
• Does the political leader or party use their power and position to punish their enemies and benefit their supporters? Do they view their position as a means to help their friends? Do they use their position or power to enrich themselves and their friends?
• Does the political leader or party try to inappropriately influence elections, either through inviting in foreign involvement or suppressing voting rights? Do they work to undermine the public’s trust in elections, telling lies about election integrity? If they lose an election, is their default position to claim election fraud rather than accepting the will of the voters?

The answers to these questions will tell you if a politician or political party is embracing fascist behavior and ideology. Unlike in Mussolini’s time, it’s no longer fashionable for a politician or political party to admit that they are fascist. Even so, fascists give away the game through their behavior and rhetoric. Ask the questions if you want to know the truth.

ADDENDUM: After I wrote this essay, historian Heather Cox Richardson wrote from a historical perspective about how fascism was handled by the U.S. Army during World War II. Her essay was written in anticipation of Memorial Day 2023, and was originally published to her Substack, Letters from an American (published 5/29/23). Here’s what she wrote:

Beginning in 1943, the War Department published a series of pamphlets for U.S. Army personnel in the European theater of World War II. Titled Army Talks, the series was designed “to help [the personnel] become better-informed men and women and therefore better soldiers.”

On March 24, 1945, the topic for the week was “FASCISM!”

“You are away from home, separated from your families, no longer at a civilian job or at school and many of you are risking your very lives,” the pamphlet explained, “because of a thing called fascism.” But, the publication asked, what is fascism? “Fascism is not the easiest thing to identify and analyze,” it said, “nor, once in power, is it easy to destroy. It is important for our future and that of the world that as many of us as possible understand the causes and practices of fascism, in order to combat it.”

Fascism, the U.S. government document explained, “is government by the few and for the few. The objective is seizure and control of the economic, political, social, and cultural life of the state.” “The people run democratic governments, but fascist governments run the people.”

“The basic principles of democracy stand in the way of their desires; hence—democracy must go! Anyone who is not a member of their inner gang has to do what he’s told. They permit no civil liberties, no equality before the law.” “Fascism treats women as mere breeders. ‘Children, kitchen, and the church,’ was the Nazi slogan for women,” the pamphlet said.

Fascists “make their own rules and change them when they choose…. They maintain themselves in power by use of force combined with propaganda based on primitive ideas of ‘blood’ and ‘race,’ by skillful manipulation of fear and hate, and by false promise of security. The propaganda glorifies war and insists it is smart and ‘realistic’ to be pitiless and violent.”

Fascists understood that “the fundamental principle of democracy—faith in the common sense of the common people—was the direct opposite of the fascist principle of rule by the elite few,” it explained, “[s]o they fought democracy…. They played political, religious, social, and economic groups against each other and seized power while these groups struggled.”

Americans should not be fooled into thinking that fascism could not come to America, the pamphlet warned; after all, “[w]e once laughed Hitler off as a harmless little clown with a funny mustache.” And indeed, the U.S. had experienced “sorry instances of mob sadism, lynchings, vigilantism, terror, and suppression of civil liberties. We have had our hooded gangs, Black Legions, Silver Shirts, and racial and religious bigots. All of them, in the name of Americanism, have used undemocratic methods and doctrines which…can be properly identified as ‘fascist.’”

The War Department thought it was important for Americans to understand the tactics fascists would use to take power in the United States. They would try to gain power “under the guise of ‘super-patriotism’ and ‘super-Americanism.’” And they would use three techniques:

First, they would pit religious, racial, and economic groups against one another to break down national unity. Part of that effort to divide and conquer would be a “well-planned ‘hate campaign’ against minority races, religions, and other groups.”

Second, they would deny any need for international cooperation, because that would fly in the face of their insistence that their supporters were better than everyone else. “In place of international cooperation, the fascists seek to substitute a perverted sort of ultra-nationalism which tells their people that they are the only people in the world who count. With this goes hatred and suspicion toward the people of all other nations.”

Third, fascists would insist that “the world has but two choices—either fascism or communism, and they label as ‘communists’ everyone who refuses to support them.”

It is “vitally important” to learn to spot native fascists, the government said, “even though they adopt names and slogans with popular appeal, drape themselves with the American flag, and attempt to carry out their program in the name of the democracy they are trying to destroy.”

The only way to stop the rise of fascism in the United States, the document said, “is by making our democracy work and by actively cooperating to preserve world peace and security.” In the midst of the insecurity of the modern world, the hatred at the root of fascism “fulfills a triple mission.” By dividing people, it weakens democracy. “By getting men to hate rather than to think,” it prevents them “from seeking the real cause and a democratic solution to the problem.” By falsely promising prosperity, it lures people to embrace its security.

“Fascism thrives on indifference and ignorance,” it warned. Freedom requires “being alert and on guard against the infringement not only of our own freedom but the freedom of every American. If we permit discrimination, prejudice, or hate to rob anyone of his democratic rights, our own freedom and all democracy is threatened.” And if “we want to make certain that fascism does not come to America, we must make certain that it does not thrive anywhere in the world.”

Seventy-eight years after the publication of “FASCISM!” with its program for recognizing that political system and stopping it from taking over the United States, President Joe Biden today at Arlington National Cemetery in Arlington, Virginia, honored those who gave their lives fighting to preserve democracy. “On this day, we come together again to reflect, to remember, but above all, to recommit to the future our fallen heroes fought for, …a future grounded in freedom, democracy, equality, tolerance, opportunity, and…justice.”

“[T]he truest memorial to their lives,” the president said, is to act “every day to ensure that our democracy endures, our Constitution endures, and the soul of our nation and our decency endures.”

 

I was probably fourteen or fifteen years old when I had my first taco. It was made with seasoned ground beef on an Old El Paso hard taco shell, garnished with onions and shredded cheese, then smothered in Old El Paso Taco Sauce. For the next several years, I was under the impression that the tacos my mother made for our family were the only kind of tacos in the world. I was naïve.

When I was nineteen or twenty years old, I went to El Rocha, an authentic Mexican restaurant in my hometown, with a group of friends. I was not very worldly and the only Mexican restaurant I had ever been to before was Taco Bell. In other words, to that point in my young life, I had never been to a real Mexican restaurant.

I remember looking at the menu and was transfixed by the number of different types of tacos they offered. There was Tacos Pescado, and Tacos Barbacoa, and Tacos al Pastor and Carnitas, both of which were pork, which only served to confuse me further. I ordered the Tacos Carnitas and was soon introduced to an entirely new world of culinary delights.

As happens so often, questions entered my head–Where do tacos come from? How many different types of tacos are there?–and I was soon crawling down a rabbit hold that consumed my time and simultaneously made me hungry.

The first question is fairly easy to answer. Tacos are thought to come from Mexico, long before the Spanish arrived. Ancient Mexicans used fresh, soft, flat corn tortillas and made them with fillings like fish and cooked organs. It was a staple meal that provided vital nutrients and energy to those who consumed it.

The answer to the second question is a little more involved. Here are the different types of tacos I was able to come up with. I’m sure it’s not a comprehensive list, so if you have a favorite taco that’s not included here, let me know.

Tacos Adobado — Tacos Adobado can contain just about any kind of meat filling. The thing that distinguishes Tacos Adobado from other tacos is the meat is prepared with adobado.  While popular in Tijuana, not many restaurants in the U.S. serve Tacos Adobado.

Tacos al Pastor — “Shepherd-style” pork marinated in a blend of chilies and spices, then slow-cooked on a Mexican trompo (vertical rotisserie) over an open flame. Garnish often includes something sweet, like pineapple, which is cut into very small pieces to give the taco a sweet, tangy flavor.

Tacos Arabes — A taco that combines Mexican and Middle Eastern influences. Cumin-marinated pork is thinly sliced from a trompo, stuffed into a pita rather than a tortilla, and garnished with diced yellow onions, crumbled bacon, cumin, oregano, and lime juice.

Tacos Barbacoa — Beef (cachete) or goat (cabrito) slow-cooked over an open flame Garnished with chopped onions, cilantro, and lime juice. Very popular in Northern Mexican and in the Rio Grande Valley of Texas.

Tacos Birria — Birria is a spicy meat stew prepared with goat that is popular in the State of Jalisco. The goat is marinated in a guajillo chili-based broth. Birria is a special occasion dish, popular at weddings and other gatherings, but for more informal occasions, the birria is eaten as a taco on a tortilla, garnished with tomatoes, onions, and cilantro. Birria des beef is prepared the same way, but using beef instead of goat.

Tacos Buche — Features the stomach of the pig which is stewed in spices and chilies, making the meat tender (though somewhat chewy) and tasty. Buche is less chewy than beef tripe, which is more well known in the United States.

Tacos Cabeza – Beef from the head of the cow, flavored simply with salt, and often braised or steamed. Garnished with onions and cilantro, and sometimes leeks.

Tacos Camarones — Shrimp tacos feature grilled or deep fried shrimp, and are garnished with cabbage, pico de gallo, salsa, and either a sour cream or citrus mayonnaise white sauce.

Tacos Campechanos — Popular in Southern Mexico, campechanos are often made with a combination of meats, including beef, pork sausage, or chirizo. Often, the tacos are made with whatever is left over from previous meals. Often garnished with onions, cilantro, and lime juice.

Tacos Carne Asada — Carne Asada refers to grilled meat, most frequently flap steak. The meat is marinated in citrus juices, cumin, and other spices, and is either sliced thin or chopped into small chunks.

Tacos Carnitas — Made with braised or simmered shredded pork shoulder. Tacos Carnitas are very popular, especially in the State of Michoacan, because they are simple, easy to prepare, and extremely tasty.

Tacos Cecina — Cecina refers to beef or pork that is thinly sliced, salted, and dried in sheets or strips in the open air, sun, or smoke. The meat is marinated in a coating of chili peppers, resulting in a smoky flavor, and easily folds into a tortilla for a tasty taco.

Tacos Chapulines — Chapulines are grasshoppers (Yes, grasshoppers) that are dried and toasted, then flavored with lime juice, garlic, and chili. Chapulines are often eaten as a snack, much like french fries, but can also be eaten on a tortilla with common garnishes for a crunchy-style taco.

Tacos Chicharron — Chicharron, more commonly known as pork rinds in the United States, are simmered in salsa verde to soften them up, and then stuffed into a tortilla for a spicy, somewhat chewy, taco.

Tacos Chorizo — Mexican chorizo is a blend of minced meat–usually pork–that is cured and smoked, and seasoned with spicy chili peppers. Especially popular in the State of Toluca, Tacos Chirizo are often garnished simply, with red onions.

Tacos Cochinita Pibil — Popular in the Yucatan Pennisula, Tacos Cochinita Pibil are made with a sucking pig (pork) that is marinated in citric juices, such as bitter oranges, lemons, and limes. The pork is often seasoned with annatto seed and slow roasted in a banana leaf, leaving the meat incredibly tender.

Tacos Cueritos — Like Chicarrones, but instead of being deep fried, the pork skin is pickled in vinegar and seasoned with chilis, peppers, oregano, and other spices.

Tacos de Canasta — Also called Tacos al Vapor or Tacos Sudados, these tacos are named, not for their filling, but for the way they are prepared. The tortilla is fried and then filled with ingredients like tinga (below) or cochinita pibil (above). However, two of the the most popular fillings are mashed potatoes or refried beans. The ingredients hold up well without being heated or refrigerated, and are often sold by street vendors.

Tacos Huitlacoche — Also called Mexican truffle, corn smut, or corn mushroom, huitlacoche is a fungus that organically grows on corn. It is distinctly Mexican, and is rare, even in Mexico. When heated, the white huitlacoche turns black and has a rich, earthy flavor, often compared favorably to mushrooms.

Tacos Lengua — Beef tongue is slow-cooked for several hours then chopped into small, uniform pieces. The beef tongue, when cooked properly, is said to have a buttery texture, and is often served with cabbage, tomatoes, and a sour cream sauce.

Tacos Pescado — Called “fish tacos” in the United States, Tacos Pescado originated in Baja California and feature grilled or fried white fish filets along with cabbage, pico de gallo, salsa, and a white sauce made either with sour cream or citrus mayonnaise.

Tacos Pollo — Pollo (chicken) is usually marinated and grilled, then shredded or cut into chunks before being put into a tortilla with a variety of different toppings. In the United States, the chicken is sometimes southern fried.

Tacos Res — A generic term for any taco made with beef. Toppings and cooking style may vary, but Tacos Res always features beef.

Tacos Sesos — Features cow brains which are first boiled and seasoned before being braised or grilled. The meat has a custard-like consistency, which is favored by some over a crunchy or chewy taco.

Tacos Suadero de Res — A taco featuring the beef between the belly and leg of the cow that is stewed in lard for several hours before being fried, resulting in a crispy, carmalized filling. Often served with chopped onions and crumbled queso.

Tacos Tinga — Pollo (chicken) meat from the thigh that is braised in tomato-chipotle chili sauce, then shredded and served on a tortilla with a variety of garnishes.

Tacos Tripas — Cows stomach or intenstines that are cleaned and boiled before being grilled, often in a “disco,” which somewhat resembles a wok. If not cooked correctly, Tacos Tripas can turn out rubbery.

Tacos de Trompo — Pork that is seasoned with paprika and is warmed on a trompo (vertical rotisserie). In Mexico, the pork is often warm, but raw. Because of local health regulations, in the United States, the pork is fully cooked. Served on a corn tortilla, the paprika gives the pork a smoky, spicy flavor.

No Labels, the supposedly moderate, “get things done,” political organization, is gearing up to run a third-party candidate in the 2024 Presidential Election. They are currently fundraising, and are doing so by trying to convince people that not only can they win, but if they do, all of our current problems with political division and gridlock will magically disappear, ushering in a new era of cooperation and tri-partisanship. That’s nonsense. There’s no way any of that is going to happen.

I recently received the following fundraising email from Johnny Kunza, Vice-President at No Labels. I trust that he means well*, but it is horribly and dangerously naïve to think that a third-party candidate for president can get on the ballot in all 50 states, has any chance of winning, and if by some miracle they do win, that enough members of Congress will cooperate with them to make a difference. I hope that Johnny and his cohort at No Labels comes to their senses before they do serious damage, not only to the 2024 Presidential Election, but to the future of our country.

Here is the email I received from No Labels followed by my response:

Hi Friend,

I think we both know that it’s time for a new choice for America, but it’s looking more and more like 2024 is going to be a replay of 2020.

Meanwhile, our economy is rife with inflation, there is a crisis at our border, and our education system is failing our kids. This is why our efforts to get on the ballot in every state is SO important.

Just imagine, for the first time in well over a hundred years, a true third option. Imagine electing a unity government that could achieve bold bipartisan solutions to our nation’s problems and actually fix things like our broken immigration system and secure Social Security for our children and grandchildren. Imagine that we could even find a middle ground in the culture wars that threaten to tear us apart.

This is a unique moment in American history in which dissatisfaction with the parties, the politicians, and the state of the country is so high that a middle of the road alternative is a REAL possibility. We know it’s a real possibility because of the fearful reaction coming from the two major parties. They know we’re onto something. And if we want to keep this momentum going, I need you to do two things:

1. Join our Citizen Action Center to help spread the word about our efforts
2. Pitch in $10, $25, or $50 today to No Labels 2024

Warring factions in our broken politics will keep trying to stop us as they continue to tear our country apart in a no-holds barred battle for political power. But we are reimagining a different future where our leaders come together to solve our problems. With your help we can restore our government to one of the people again and not of the parties.

Thanks for all your support, Friend!

Best,

Johnny Kunza
VP, Digital

---

Johnny –

Your plan to run a third-party candidate in the 2024 Presidential Election is a pipe dream. In the current environment, not only can a third-party candidate not win, running a third-party candidate will ultimately lead to the election of an authoritarian leader. I trust that No Labels’ intentions are pure*, but you have to know that this is a horrible idea.

Assuming you can get on the ballot in all 50 states–an incredibly ambitious and unlikely possibility–you don’t stand a chance of winning in any of those states. You must know that third-party candidates never do well in presidential elections, and that is especially true at a time like now when the base of the Republican Party is so radicalized and so locked-in to supporting their candidate (most likely, Donald Trump), that the only votes a third-party candidate is likely to get will come from voters that otherwise would be voting for the Democratic candidate.

Let’s play a “what if” game. What if a third-party candidate were to win the presidency? Who in the House or Senate would cooperate with that president? Neither Republicans nor Democrats support the president of the opposing party now. What makes you think they would support a third-party president? Trust me, they wouldn’t.

If you are serious about starting a third-party in the United States, don’t take the easy way out. Start with local elections. Elect local officials and state legislators. Start in one state (or a handful) and build a true party, not a one-off candidacy that is sure to fail. Political parties need members if they are to be sustainable. Don’t start with a presidential candidate and hope that members of other parties vote for them. Create your own members. Start small and build momentum. That’s how political parties are formed, not by running a Hail Mary presidential candidate.

Please don’t disrupt the 2024 Presidential Election. You can’t win, but your efforts could lead to the end of democracy in the United States.

Sincerely,

Lou Mindar

 

* I initially gave Johnny Kunza and the folks at No Labels the benefit of the doubt in their efforts to run a third-party presidential candidate. That was, until I learned that Republican mega-donors (including Clarence Thomas’ pal, Harlan Crow) are funding No Labels’ efforts, and Republican political strategists are running their campaign efforts. These people are extreme right-wing ideologues, not middle-of-the-road moderates. They don’t want a presidential candidate that will unify our elected officials. Their stated goal has been to rig the system so their favored MAGA Republican candidates can’t lose. Or, at least, will have an easier time winning. Look where else these mega-doors are investing their money. They’re doing everything they can to suppress voting rights, confirm extreme right-wing judges, and institutionalize gerrymandering. These are not the actions of democracy-loving patriots who just want everyone to get along for the good of the country. They are radicals trying to tear down our democracy and elect a more authoritarian government.  So, don’t fall for their lies or unrealistic utopian political fever dreams. No Labels is trying to rig the election, not bring our country together.