Federal Court Reforms Worth Considering

1. Reduce The Scope Of Federal Court Jurisdiction

In terms of major top line categories, federal criminal cases break down as follows:

* Violent Crimes 2.4%

* Property Offenses 11.3%

* Drug Offenses 27.8%

* Firearms and Explosives Offenses 13.9%

* Sex Offenses 3.6%

* Justice System Offenses 0.9%

* Immigration Offenses 33.5%

* General Offenses 1.9%

* Regulatory Offenses 1.5%

* Traffic Offenses 2.2%

The single most commonly charged offense is illegal reentry by an alien which accounts for 27.5% of all federal criminal defendants. Like all immigration offenses, it has no state law equivalent, but there is no really compelling reason to make this offense a crime, rather than simply making it an administrative immigration matter that is a grounds for deportation and for denial of future immigration benefits. Improper entry by an alien accounts for just 0.6% of all federal criminal defendants but is another unnecessary federal immigration crime.

many federal crimes . . . are easily repealed and left to state and local authorities (with the estimated impact on the federal docket): Most federal homicides (0.1%), bank robbery (0.6%), kidnapping (0.2%), most racketeering offenses (0.6%), theft and embezzlement from banks and financial institutions (0.1%), many federal fraud offenses (0.7%), pornography offenses (1.7%), and all intrastate drug offenses (25.5%), for example, could be repealed.

Combined, repealing the crime of illegal re-entry by an aliens, and the other crimes suggested would reduce the federal criminal docket by 57.5% and probably a little more than that . . . This would also greatly shrink the federal prison system, although not proportionately, since the immigration offenses decriminalized typically involve short, often mere "time served" sentences.

Combined with a significant (roughly 51.9%) reduction in federal civil dockets by simply repealing 28 U.S.C. §§ 1331 (general federal question jurisdiction) which accounts for about 18.4% of cases that don't have an additional specific jurisdictional basis, and 1332 (diversity jurisdiction) which accounts for 32.9% of civil cases filed in federal court), these straight forward reforms could greatly reduce the importance of the federal courts . . . , thereby decreasing the stakes in federal judicial appointments below the U.S. Supreme Court level.

From here. 

2. Increase the Size Of The U.S. Supreme Court

Add 6 new justices to the U.S. Supreme Court, bringing the total number of justices to 15, initially 3 ultraconservatives, 3 conservatives, and 9 liberals.

The U.S. Supreme Court quorum should be reduced from six of nine justices now, to eight of fifteen justices, to prevent a boycott that undermines a majority decision.

The number of justices in an expanded Supreme Court needed to grant certiorari would be six or seven as determined by the court.

The U.S. Supreme Court should elect its own Chief Justice rather than having that post designated by the President and the U.S. Senate, in furtherance of the separation of powers.

A larger court might also have a greater capacity to handle more cases per term since there would be fewer lead opinions to write per justice.

3. Transfer Indian Country felonies from U.S. District Courts to a new court.

Tribal courts handle misdemeanors committed by Native Americans on Indian Reservations and civil cases. Generally, felonies committed on Indian Reservations, by both Native Americans and non-Native Americans, are tried in U.S. District Court by federal prosecutors. 

I would favor creating a new federal trial court system and corps of federal prosecutors and investigators who would handle felonies committed by Native Americans on Indian Reservations, which make up a large share of the "blue collar crime" docket in the federal courts, with appeals from these courts going to a new federal circuit court.

4. Discouraging Judge Shopping and National Injunctions

* Require cases in a U.S. District Court to be randomly allocated to the judges in the district.

* Require cases challenging the constitutionality or validity of a federal law or regulation to be heard by a three U.S. District Court judge panel. There would be a direct appeal of right to the U.S. Supreme Court in cases where the law or regulation is invalidated, except as provided below.

* Limit facial challenges of federal laws and federal regulations to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit). 

* Clarify that the statute of limitations for challenges to the process by which a regulation is adopted runs from the date that the regulation was adopted (overturning a recent U.S. Supreme Court precedent). 

* Limit the authority to enter a national injunction that binds the United States vis-a-vis anyone other than the parties to the case to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit).

5. Splitting The 9th Circuit, And A Merger

Form a new 12th Circuit consisting of California, Nevada, and Arizona, leaving the remaining courts in the 9th Circuit in Alaska, Guam, Hawaii, Idaho, the Northern Marina Islands, Montana, Oregon, and Washington.

As much as anything, this pre-empts less desirable splits. There would be no pressure based upon the number of judges or docket load to split up the rump 9th Circuit with its six states and two territories, and it would have a balanced red-blue mix. The new 12th Circuit with three states would still be very large in terms of its number of judges and docket size, and it would be even more dominated by California than the existing 9th Circuit, although it would also have a red-blue mix.

Splitting California up would lead to chaos, and moving Arizona from the 9th to 10th Circuits would also lead to complicated issues of which circuit's precedents applied to it. Circuits have also always had at least three states, which this plan would maintain. California, Nevada, and Arizona have strong economic ties and would benefit from having only a single circuit's precedents to govern them, which would not happen, for example, in a plan where California, Hawaii, Alaska, and the two territories were part of a new 12th Circuit.

The D.C. Circuit could be merged into the Federal Circuit.

A mentioned above, there would also be a new U.S. Court of Appeals For Indian Country.

The split would also leave 15 U.S. Courts of Appeal (twelve numbered circuits, the newly merged Federal Circuit, the Indian Country Circuit, and the U.S. Court of Appeals For the Armed Forces), one of which could be allocated to each justice in an expanded U.S. Supreme Court, as a circuit justice for that court.

6. Circuit splits.

One way to mitigate the harm caused by circuit splits, albeit at the cost of certainty in any particular circuit, would be to downgrade the effect of a precedent, even in the circuit in which it was decided, from binding precedent to persuasive authority, on any point of law with regard to which there is a live circuit split that has not been resolved by U.S. Supreme Court ruling, statutory change in the law, or a later en banc decision in the same case that the panel decided.

This would bring more judges into the process of considering the issue decided by the initial panel on the policy and precedent merits as a case of first impression, rather than pursuant to a precedent which has been seriously questioned.

If the panel decision downgraded to persuasive authority is well argued, it will still be followed. But, if it was poorly reasoned, other judges considering the issue will decline to follow it.

This rule would also put more pressure on the U.S. Supreme Court and Congress to resolve legal issues upon which circuit splits arise. This pressure should be present because many firms and organizations and even individuals need to take an action which will ultimately be subject to legal review in more than one circuit and a circuit split cements the inability of these people to predict the legal outcome of that issue since they don't know where it will arise.

 From here.

7. Habeas corpus and prisoner's litigation

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions. . . . As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total. . . . About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds and about 35% of those issues are dismissed on the merits, while about 2% are either resolved favorable to the prisoner on the merits or remanded to a state court for further proceedings at the U.S. District Court level. . . . [A]study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." . . . [Another study] puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." . . . about 20% of successful habeas corpus petitions involve death penalty cases. . . . As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low a 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri. 

The number of non-death penalty convictions reversed in federal habeas corpus proceedings is about 3 per 10,000.

From here.

These cases, and prisoner's litigation, are very numerous but often futile, in part due to harsh restrictions in the 1996 Prisoner Litigation Reform Act and the 1996 Anti-Terrorism and Effective Death Penalty Acts.

There were 9,690 prisoner's petitions, including habeas corpus petitions, out of 293,539 civil cases in U.S. District Court in the fiscal year ending September 30, 2023 (about half of the number filed twenty years ago in 2004), and about 3.3% of the civil docket. 

In the U.S. Courts of Appeal there are 9,089 prisoner's petitions out of 39,987 total appeals, in the same time period, and about 22.7% of all federal appeals.

Prisoner petitions constituted 69 percent of the civil pro se caseload. Civil rights actions accounted for 14 percent of the civil pro se caseload. The majority of prisoner petitions are filed pro se. . . . from 2000 to 2019, in 91 percent of prisoner petition filings, the plaintiffs were self-represented. In contrast, only 11 percent of non-prisoner civil case filings involved plaintiffs and/or defendants who were self-represented.

From here. 

A large share of filings in the U.S. Supreme Court are in forma pauperis (IFP) filings. In its 2022 annual report, the U.S. Supreme Court statistics were as follows:

The total number of cases filed in the Supreme Court decreased eight percent from 5,307 filings in the 2020 Term to 4,900 filings in the 2021 Term. 

The number of cases filed in the Court’s in forma pauperis docket decreased five percent from 3,477 filings in the 2020 Term to 3,288 filings in the 2021 Term. 

The number of cases filed in the Court’s paid docket decreased 12 percent from 1,830 filings in the 2020 Term to 1,612 filings in the 2021 Term. 

During the 2021 Term, 70 cases were argued and 63 were disposed of in 58 signed opinions, compared to 72 cases argued and 69 disposed of in 55 signed opinions in the 2020 Term. The Court also issued seven per curiam decisions in argued cases during the 2021 Term.

From here. 

About one in 470 IFP petitions are granted each term, while about one in 26 paid petitioners are granted each term. The IFP petitions are mostly, but not entirely, prisoner's petitions. 

This system isn't very functional either at providing relief for prisoners who have legitimate cases, or at managing cases without merit well. Access to the courts without counsel, particularly in the contexts of claims of wrongful convictions and prison conditions, is virtually meaningless. There are wrongs to be righted, amidst legions of bored prisoners with no downside in trying, but the current process does a poor job of sorting them.

At a minimum, this issue should be re-examined in good faith in search of a better solution.

8. Judicial ethics.

I would suggest two judicial ethics reforms:

* A rule that federal judges must recuse themselves from cases where the President or former President who appointed that judge is a party in a non-official capacity.

* A binding ethics code for the U.S. Supreme Court with the power to order a judge to recuse or impose other sanctions similar to those for other judges. Some violations would be criminal offenses.

9. Jurisdiction Over Corporations.

The recently overturned rule that a corporation may be sued, in general jurisdiction, any state in which it has an office for the conduct of business or an employee, should be reinstated by statute.

Life After Affirmative Action At MIT

We now know what the end of affirmative action looks like at a major, highly selective national university. 

Mostly, black and Latino enrollments are down, while Asian American enrollments are up. The magnitude of the shift will probably be smaller at less selective colleges and universities.

The Massachusetts Institute of Technology’s incoming class of 2028 saw a precipitous drop off in the percentage of Black, Hispanic, Native American and Pacific Islander students, the university announced on Wednesday. It is the university’s first undergraduate class to be admitted since the U.S. Supreme Court’s decision last year banning affirmative action.

For the incoming class of 2028, about 16 percent of students are Black, Hispanic, Native American and Pacific Islander, compared to a baseline of about 25 percent of undergraduate students in recent years, the announcement said.

The comparison to the class of 2027 was even more dramatic. The percentage of Black students enrolled dropped to 5 percent from 15 percent, and the percentage of Hispanic and Latino students dropped to 11 percent from 16 percent. White students made up 37 percent of the new class, compared to 38 percent last year.

The percentage of Asian American students in the class rose to 47 percent from 40 percent.

From the New York Times.

Selected Wishes

They aren't prayers, because there is no one to pray to and prayers don't work.

They are just select, somewhat realistic, wishes or dreams, and I have little ability to do much to make them happen or not.  

U.S. Politics

* Harris wins the Presidential election.

* Democrats win the U.S. House and the U.S. Senate.

* Democrats hold CO-8 and win CO-3 and maybe even CO-5.

* The filibuster is abolished in the U.S. Senate.

* The U.S. Supreme Court is expanded to 13-15 seats, allowing Harris to appoint 5-7 new liberal justices.

* D.C. gains statehood status.

* Trump is sentenced to and serves several years in prison on his current charges of conviction, is not released pending appeal, and is ultimately convicted of at least some charges in the three other criminal cases that were brought against him with the classified documents case dismissal reversed on appeal.

* Justice Thomas is punished for corruption.

* Abortion bans fall one by one, state by state.

* The MAGA movement collapses.

U.S. Culture And Daily Life

* Christianity continues to decline in the U.S. in favor of secular worldviews.

* The percentage of people who own guns falls.

* Crime rates continue to fall.

* Police become less likely to use excessive force and less likely to act inappropriate when accountability measures and training are improved.

* Life expectancies and general health improves with new medical advances and better public health measures.

* Southern and country culture, and cultures of honor ebb and wane.

U.S. Economics

* Electric vehicles increase their market share.

* Coal consumption continues to plummet.

* Petroleum consumption plummets.

* Fossil fuel dependent economies like Wyoming, Alaska, and Texas see huge, long term stagnation similar to what was seen in the Rust Belt.

* The U.S. becomes more urbanized.

* Anti-fraud enforcement becomes more successful.

* Lawns and grass landscaping become more rare in the arid West.

* Land use regulations are relaxed.

* Unnecessary occupational regulation is relaxed.

* Immigration remains substantial and undocumented immigrants are largely legalized.

* Copyright laws and other intellectual property laws are weakened.

International Affairs

* Ukraine wins its war with Russia.

* Putin dies or is removed from office.

* The Houthis are defeated in Yemen.

* Hezbollah is defeated in Lebanon.

* Iran's efforts to make war with Israel prove futile.

* North Korea and Russia cease to be able to support their large military forces and greatly reduce them.

* Countries with fossil fuel economies like Russia, Venezuela, and Saudi Arabia see long term stagnation as fossil fuels become less important in their economies, and this undermines their authoritarian leaning regimes.

SCOTUS v. Federal Regulators

In the last few days, SCOTUS has made three rulings that seriously weaken the federal administrative state.

In Corner Post, Inc. v. Board of Governors, No. 22-1008, it effectively eliminated the six year statute of limitations for facial challenges to federal regulations, in Loper Bright Enterprises v. Raimondo, No. 22-451, it ended Chevron deference to administrative agency interpretations of federal statutes through regulations, and in SEC v. Jarkesy, No. 22-859 it has ended the ability of federal agencies to impose civil fines through administrative hearings - requiring jury trials in federal district courts instead (contrary to more than 200 federal statutes enacted after SCOTUS approved the practice).

The current ultraconservative court has taken other steps to weaken federal regulatory agencies in the past, but these three cases together are a revolution in federal administrative law that greatly weaken the power of the federal government to enforce federal laws.

For example, in the past week it also decided Ohio v. Environmental Protection Agency, No. 23A349, which ordered a stay of enforcement of certain federal environmental regulations in the face of a dubious challenge to them. This decision, on its face, however, has less broad implications.

A Horror Show One Step Removed

It feels like the early scenes of a horror movie.

Dobbs has led to a dramatic rollback of abortion rights in half the country, but not where I live, not where my children or siblings or nieces and nephews live.

Louisiana and Oklahoma are blatantly defying constitutional law on separation of church and state, and might get away with it with the current U.S. Supreme Court.

Trump has been in a narrow lead in the Presidential race for months despite being the most dishonest, idiotic, and chaotic evil Presidential candidate ever, and a convicted felon with three more criminal trial around the corner, although not necessarily before election day. MAGA could just as well be the followers of Voldemort, and yet, 40% of the country doesn't notice, doesn't care, and embraces the evil. President Biden is doing good that is going unnoticed in the face of a gridlocked Congress, and campaigns very poorly as we were reminded after the first Presidential debate of this season.

The U.S. Supreme Court has been consistently pro-corruption in its rulings, and undermined January 6 accountability, and nullified the 14th Amendment insurrection clause contrary to the constitution's clear language. It is, of course, deeply corrupt itself, particular Justices Thomas and Alito.

The high court has also made our national suicide pact of the Second Amendment worse and is trying to gut federal government regulatory power.

Yet, here in Colorado, most of it is one step removed. Our state government is solidly moving in the right direction and isn't wallowing in gridlock. Our ever shrinking GOP is whiny and irrelevant in state politics. Our state supreme court took the lead in interpreting the insurrection clause correctly, and our courts in general, while not perfect are less political and more competent than most. We have meaningful protections against corruption and our scandals arise because they are being enforced. Our electrical grid is getting greener and we are using more and more electric vehicles. We are using our water more wisely. We are reintroducing wolves. We are trying to prevent gun violence. We are expanding access to education. We are making it harder to ban books. We are taking action to make housing more affordable and house the homeless. We have raised the minimum wage. We have strengthened tenants rights. We have created a right to paid sick leave. We have expanded our federal parks. We are treating migrants blown to us decently. We are making it easier to vote. We are curbing some of the worst excesses of the criminal justice system, for example, by abolishing the death penalty, by toning down felony murder, by curtailing solitary confinement, and by eliminating qualified immunity for law enforcement officers at the state level. We have led the nation in legalizing marijuana and are following that by legalizing some psychedelics. We are so gay friendly that we have a married gay Governor, have had a lesbian speaker of the state house before that, and have same sex common law marriage. We have cast away place names that are derogatory or exalt KKK members. We have done it with less bureaucracy and lower taxes than California. Our economy is mostly thriving.

Another four years of Trump looks, surreally, like a real possibility, with all the ruin that is likely to bring to our nation if it doesn't end democracy entirely, and tip the balance in favor of autocrats on the global stage.

We haven't reached the point where all hope is lost, but we could end up there in a matter of months.

A Quick Rant

I am disgusted that so many Americans support Donald Trump when his mendacity and incompetence are so widely known. Some of the GOP and political right's high profile figures are almost as bad: Marjorie Taylor Green, Lauren Boebert and more.

I am disgusted at the corruption on the U.S. Supreme Court by justices like Thomas and Alito, and by the gross disregard for judicial norms and logic and common sense in many of the rulings it has made since the 6-3 conservative majority was put in place on the court (through dubious political tactics).

I am tired of the counter-majoritarian rules of the U.S. federal government lead to gridlock most of the time.

I am tried of having to deal with people who make bad decisions based upon the misinformation they receive from Fox News and less prestigious conservative news outlets.

I am tired of having my country's policies influenced by people who don't believe in evolution, who think the world is flat, who think the moon landing was faked, who think that the U.S. government is hiding secret technologies it received from aliens after they crashed in Roswell, New Mexico, who think that Noah's flood really happened, who think that vaccines are a threat but prayer heals, and on and on and on. And, I am tired of the nut jobs like Tucker Carlson and Evangelical Christian clergy who perpetuate these absurdities.

I am tired of living in a country where one of two major political parties, the Republican Party, absolutely refuses to acknowledge reality and embraces corruption and criminality and political violence. I want a political environment where you can have your own opinions but you are not free to make up your own facts, and everyone has to obey the law.

I am tired of living in a world where a handful of authoritarian bad actors like the current leaders of Russia and North Korea, can cause so immense harm to global peace. 

I despair that in the 21st century, Saudi Arabia is still executing people for witchcraft. 

Quotes About SCOTUS

I don’t need a black robe to hand down a judgment on the Supreme Court. It’s corrupt, rotten and hurting America.

From Maureen Dowd, "The Verdict Is In on the Supreme Court" New York Times (June 4, 2024).

The Roberts Court also has a history of embracing legal arguments that were widely viewed as risible by the legal community after those arguments were adopted by the Republican Party.

From Ian Millhiser, "Trump wants the Supreme Court to toss out his conviction. Will they? It’s hard to see how they’d do it legally, but this Court has a history of reading the law creatively." Vox (June 5, 2024).

The 2024 Presidential Election Update

Today is Super Tuesday. Yesterday, the U.S. Supreme Court ruled in a poorly reasoned and results driven 9-0 decision that Trump can remain on the ballot.

Barring a candidate dropping out of the race due to disability, death, or in Trump's case, loss of support due to one or more felony convictions, the Presidential race in November will be a Biden v. Trump rematch.

The U.S. Supreme Court decision to take up an immunity question in the January 6 felony case Trump is facing, despite the likelihood that it will affirm that decision, takes one of the four criminal trials Trump may face before the election effectively off the calendar. But he still faces three felony cases that could go to trial before the election, a federal classified documents case in Miami, Florida, an election tampering case in Atlanta, Georgia, and a hush money related business fraud case in New York State, which will go to trial later this month.

The polling is still stunningly close, despite a strong economy that usually helps an incumbent, and myriad problems with Trump that would have destroyed any other candidate.

On the other hand, about 30% of Republican primary and caucus voters are supporting Nikki Haley, suggesting that they might not be as reliable in the general election if Trump is at the top of the ticket.

The U.S. Gun Violence Problem Is Uniquely Severe

The U.S. gun violence problem is on a whole different level than almost everyplace else in the world. Over the last five years, the U.S. has averaged one school shooting per day that school is in session. 

Bad conservative opinions from U.S. Supreme Court are some of the reasons that this is the case. 

Between January 2009 and May 2018, the United States endured 288 school shootings, while the second-place country, Mexico, had only eight. Since then, school shootings have occurred much more frequently in America. Nineteen students and two teachers were killed in 2022 at an ELEMENTARY SCHOOL in Uvalde, Texas. In 2023, there were 346 school shootings across our country, almost one a day. All in all, between 2018 and 2023 there were over 1200 school shootings in the United States. 

. . . 

The gun nightmare in America transcends school shootings. Wyoming, along with a few other western states, have high rates of suicide by guns. According to an officer at a medical center in Wyoming, "one of the challenging aspects of working in the Rocky Mountain region is just the availability and accessibility of firearms. Some days it feels overwhelming because you think, 'if we didn't have firearms to worry about, what would suicide look like here?'" She has a strong point, given that suicide by firearms is 97% lethal and Wyoming is near the top of suicide rates on a per capita basis. 

. . . 

Statistics of course can be manipulated and numbers often tell only a partial story, but not in the case of guns in the United States because all the statistics are so out of proportion with the rest of the world.

Only four countries--Mexico, Haiti, Guatemala and the United States--have made owning a gun a constitutional right. There are 120 guns per 100 people in the United States. Yes, we have more guns than people. The country with the second highest gun ownership rate is Yemen, with 52 guns per 100 people. America has more than twice as many guns per person as the next most armed country. Gun ownership in Canada, a country that is very similar to the U.S. in many respects, is only 35 guns per 100 people, and many military style weapons that are legal here are illegal there. America has only 5% percent of the world's population but approximately 40% of civilian-owned guns.

Not surprisingly, the absurdly huge number of guns in our country has led to violence and deaths. Other than Brazil, the United States has far more gun-caused fatalities than any other country. In 2021, over 48,000 Americans died from guns, with many more injured. 

Although most of those deaths were related to suicides, murders, and accidents, when a mass shooting occurs at a school or in a community, the emotional and psychological toll effects far more people than just those who are actually killed or injured. . . . There can be no debate that there is a terrible gun crisis in America. 

. . . 

But tragically, the Supreme Court of the United States has weaponized the Second Amendment and misinterpreted its text to make gun ownership a super-constitutional right. The justices have prohibited the states and the federal government from asserting public policy justifications in Second Amendment litigation, requiring them to instead find historical analogues from 1791 or maybe 1868 as a prerequisite to judicial validation of gun reform laws. But, as I've documented before, there is no textual or historical justification for the Court's elevation of personal gun rights to such high levels through a history-only test that is itself inconsistent with the Constitution's original meaning. . . . Recently, a federal judge struck down a federal law prohibiting guns in post offices. As I wrote here, that opinion is beyond any and all reason and is a direct consequence of the Court's demand that judges look only to history when evaluating the constitutionality of legislation restricting or prohibiting the use of guns. . . . the Court's wildly inappropriate judicial aggression towards legislative solutions to gun violence is almost certainly responsible for making the crisis worse. Given the Second Amendment's specific textual reference to militias, as well as the presence of 400,000,000 guns in America, along with all the other contributing factors leading to death and destruction by guns, this judicial interference is constitutional insanity and a form of national suicide. . . . .

From Dorf on Law.

The 2024 Election Considered

The U.S., stunningly in what seems like such an obvious choice, is closely divided at the national level between the Democratic Party and the Republican Party, and this trend seems sure to continue in every component of the 2024 election.

The 2024 U.S. Senate Race

The U.S. Senator Joe Manchin II (D-WV) isn't running for re-election. This race is almost sure to be won in 2024 by a Republican. As the New York Times article below notes, "only Wyoming delivered a wider Republican margin in the 2020 presidential race" than West Virginia.

Democrats need to hold every Senate seat they have and win the Presidential election, or gain on Senate seat, to maintain their U.S. Senate majority. This means winning an open race in Arizona (where Senator Sinema who left the Democratic party while still caucusing with it, is polling in third-place but could give a GOP challenger an edge), re-electing incumbent Democrats in the Red States of Montana and Ohio, and holding onto Democratic seats in the purple states of Michigan (an open seat), Wisconsin, Pennsylvania, and Nevada. Democrats best shots to pick up new seats against Republican incumbents long shots - Florida and Texas. 

The path to holding power was always going to be rocky for the Democrats’ current 51-seat majority, with or without Mr. Manchin.

Two incumbents are running for re-election in red states, Montana and Ohio. A third senator, Kyrsten Sinema of Arizona, who was elected as a Democrat but has since switched her party affiliation to independent, has yet to declare her plans — leaving open the prospect of an unusually competitive three-way race. And the party must also defend four Senate seats in four of the most contested presidential battlegrounds: Wisconsin, Nevada, Pennsylvania and Michigan. . . . 

Democrats must win every race they are defending — and depend on President Biden to win the White House — in order to maintain a majority. In a 50-50 Senate, the vice president casts the tiebreaking vote. . . . 

The bad news for Senate Democrats is that they are on defense in each of the seven seats that both parties view as most competitive this year. The good news is that in five of those seven, the party has incumbents running for re-election, which has historically been a huge advantage.

At least 83 percent of Senate incumbents have won re-election in 18 of the past 21 election cycles, according to OpenSecrets, a nonpartisan group that tracks money in politics. Last year, 100 percent of Senate incumbents were re-elected. . . . 

The Democratic incumbents in Montana and Ohio . . . are seeking re-election in states former President Donald J. Trump easily won twice. Both Senator Jon Tester of Montana and Senator Sherrod Brown of Ohio have exceeded expectations before, but never with such an unpopular presidential candidate at the top of the ticket. And unlike most incumbents, whose victories tend to become easier over time, Mr. Tester has always had close races. Mr. Brown’s margins have narrowed. . . . Democrats maintain that the personal brands of both Mr. Brown and Mr. Tester matter more in their states than national political winds. . . . 

The most interesting of the second-tier races may be in Arizona, where the state may have a competitive three-way race — a rarity in American politics. The wild-card is Ms. Sinema. If she runs for a second term, she will most likely face Representative Ruben Gallego, a well-liked progressive Democrat who has already spent $6.2 million on the race this year, and Kari Lake, the firebrand conservative Republican and one of her party’s best-known election deniers who is favored in her party’s primary. . . . 

There is no top-flight Republican challenging Senator Tammy Baldwin in Wisconsin, but the party has been pushing for Eric Hovde, a businessman who ran for Senate in 2012. 

In Pennsylvania, Republicans have cleared a path for David McCormick with the aim of avoiding a bruising primary and strengthening their bid against Senator Bob Casey, who is seeking a fourth six-year term. . . . 

In Michigan — the only competitive Senate race without an incumbent — Democrats so far have mostly aligned behind Representative Elissa Slotkin, a former C.I.A. analyst who represents a divided district. Mr. Daines recruited former Representative Mike Rogers, who was chairman of the House Intelligence Committee. But James Craig, a former Detroit police chief, and former Representative Peter Meijer, who lost his seat after voting to impeach Mr. Trump, have also entered the Republican race.

The Republican establishment pick in Nevada is Sam Brown, a retired Army captain who lost a Senate primary last year. But he’s facing a primary against Jim Marchant, a Trump loyalist and election denier who lost a race for secretary of state last year. The winner would take on Senator Jacky Rosen, a Democrat who is seeking her second term. . . . 

In Florida, Senator Rick Scott, the state’s former governor, is seeking a second term. He’s never won an election by more than 1.2 percentage points, and he’s also never run in a presidential election year — when Democrats typically fare better in Florida. But the state lurched to the right last year when Republicans won five statewide races on the ballot by an average of 18.9 percentage points. The leading Democratic challenger in the Florida Senate race this year is former Representative Debbie Mucarsel-Powell, who was unseated from her Miami-based seat after one term.

In Texas, Senator Ted Cruz has been a constant target for Democrats — and survived each time. This year, his top challenger appears to be Representative Colin Allred, a Dallas-area Democrat who defeated an incumbent Republican in 2018.

From the New York Times by Michael C. Bender and Shane Goldmacher (A version of this article appears in print on Nov. 11, 2023, Section A, Page 1 of the New York edition with the headline: Democrats See Narrower Path To Keep Senate.).

The 2024 Presidential Race

While Biden undeniably won the 2020 Presidential election, his win was no landslide victory and carried no coattails in down ticket races. Now, he is running for re-election, more or less unopposed in his efforts to secure the Democratic Party nomination. 

In the Presidential election race, the same small handful of swing states that tipped the balance in 2016 and 2020 are likely to be decisive again in 2024.

President Biden is polling very poorly in his re-election run despite strong economic conditions, but polling also suggests that this will change decisively in former President Trump is convicted in any of the four felony prosecutions that he is currently facing (assuming that he can make it onto the ballot at all in the face of a Section 3 of the 14th Amendment challenge to his eligibility to run at all). Also, favorable opinions of the incumbent President are a lagging indicator of positive economic news, so eventually, over the next year, Biden's popularity could improve before the 2024 election.

If Trump is not the Republican nominee, however, for any reason other than his death from natural causes, many Republicans might not vote at all in 2024, potentially swinging many otherwise close races for both the U.S. House and the U.S. Senate in favor of Democrats.

And, of course, both Trump and Biden are old men. Trump isn't very healthy. Biden is starting to shown the signs of age. Either man could easily die or suffer a health setback making a Presidential bid to strenuous to continue in the next year, and creating massive uncertainty over who would be their party's nominee in that situation. There are several serious back up contenders for the GOP nomination in addition to Trump who is the clear front runner despite all of his legal woes. There are no clear alternatives to Biden as the Democratic nominee at this point.

The 2024 U.S. House Race

Democrats also don't need long coattails to retake control of the U.S. House. Flipping half of dozen seats would be sufficient. The seat of Republican George Santos in New York will almost surely flip to the Democrats. And, while the Democrats haven't won every redistricting map challenge that they have brought, they have won enough times to pick up at least one or two more House seats with redrawn Congressional district maps. Newly divorced Republican Lauren "Invade Canada" Boebert, who just barely managed to win re-election in 2022 by a few hundred votes, will struggle again in 2024 to be re-elected in Colorado's comfortably Republican leaning Third Congressional District, because of her deplorable personal conduct and outrageous statements made while in office. These aren't the only seats that could be picked up by Democrats in 2024 either. Democrats lost many close races in 2022. A seat likely to be lost by a Democratic Congressman from New Jersey who is probably taking bribes, in contrast, is unlikely to be picked up by Republicans.

Conventional wisdom about the lessons of the 2023 elections is that Republican anti-abortion positions hurt them now that Roe v. Wade has been overturned by Dobbs, and will continue to do so in 2024. 

Polling has shown that the U.S. Supreme Court, under the weight of controversial hard core conservative rulings on sensitive issues like abortion and gun control, and corruption scandals limited to their conservative members, is at a record low in unpopularity and public confidence, and voters may have that in mind as well when they go to vote in 2024.

Slowly but surely, conservative voters are dying, young liberal voters are joining the electorate, and the electorate is getting less white and less Christian. Fox News and social media, which were critical in driving far right Republican support in most other recent election cycles have become less influential. And, generally speaking, Democrats do better in Presidential election years when there is more voter turnout.

All of these general considerations are particularly important in U.S. House races, that tend not to be driven by high profile personalities to the same extent as U.S. Senate races and Presidential races.

The Trump Ballot Qualification Trial

The Insurrection Clause And Colorado Trial Explained

Today is the fourth day of five in the Trump ballot qualification trial in Denver, Colorado's state court of general jurisdiction. It is a bench trial mandated by Colorado's state election laws and brought by political action group CREW to determine if former President Trump is ineligible to run for public office as a result of the disqualification set forth in Section 3 of the 14th Amendment to the U.S. Constitution, as a result of his efforts, including but not limited to the January 6, 2021 Capitol Riot, to overturn the 2020 Presidential election that he lost.

Factually, the CREW case leans heavily on and parrots the final report of the United States House Select Committee on the January 6 Attack for its evidentiary case.

The Colorado case is one of many cases challenging Trump's qualification to serve as President under the insurrection clause. 

But, the Colorado ballot access case is important because it is the first of these cases to be tried on the merits (although parallel ballot access litigation in Minnesota is also very advanced).

 

The relevant language from the U.S. Constitution, also known as the Insurrection Clause, states that:

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, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

One purely legal question is whether the clause applies to the office of President of the United States. The court has rightly rejected the dubious argument that the Presidency is not included in the statement that: "No person shall be a . . . elector of President and Vice President, or hold any office, civil or military, under the United States" in Section 3.

Another purely legal question is whether the President is "an officer of the United States" (since former President Trump took the oath of office to support the Constitution of the United States only after he was elected President). The judge has rightly rejected the dubious argument that the President is not an officer of the United States.

It is undisputed that Congress has not removed this disability if it does apply to former President Trump.

The Court has also rejected challenges to the standing of the Petitioners in the case, the ripeness of the challenge, given that Trump hasn't been elected yet, and has rejected the claim that Section 3 of the 14th Amendment may not be enforced in a civil lawsuit today because no authorizing federal legislation to allow that is in force. The judge has concluded that the private cause of action allowed by Colorado's election laws are sufficient.

Numerous historical precedents have held that this determination may be made in a civil lawsuit and does not require a criminal conviction, contrary to Trump's argument that a criminal conviction is required.

So, the core mixed question of fact and law before the Court in its five day evidentiary bench trial is whether Trump has engaged in insurrection or rebellion against the Constitution of the United States, or has given aid or comfort to the enemies the Constitution of the United States.

This requires the Court to both determine whether Trump took the actions that the Petitioners allege that he did, and to determine if the actions that the Court finds that Trump did take amount to "insurrection or rebellion against the Constitution of the United States", or to giving "aid or comfort to the enemies the Constitution of the United States."

The Petitioners note that historically, people have been disqualified from office under the insurrection clause for acts far less weighty than Trump's. 

Trump and the Colorado Republican Party have argued that Socialist Eugene Debs was allowed to run for President while in prison. In particular, "Debs was allowed to run for president despite serving time in prison for sedition for publicly discouraging military recruitment during World War I." Of course, in this 1920 election campaign, Debs was a third-party candidate with little or no chance of winning the race who received just 3.41% of the vote. Debs was sentenced, on September 18, 1918, to ten years in prison and was also disenfranchised for life. His conviction was affirmed by the U.S. Supreme Court in 1919, but his sentence was later commuted by President Harding on December 23, 1921, although Debs was not pardoned, after Congress repealed the statutes under which Debs was convicted earlier that year. It isn't clear to me, however, that his disenfranchisement, or the insurrection clause argument, was ever raised in that case to oppose his eligibility to run for President. 

In contrast, Donald Trump has previously served as President for four years, and is the clear front runner in the 2024 Republican Presidential Primary. Trump remains the far and away front runner in the GOP primary, despite the fact that he is currently facing four felony criminal cases (a criminal business fraud case in New York State, a classified documents case in a Miami, Florida federal court, a D.C. based case arising out of the January 6 riot, and a Georgia state court election interference case in which several co-defendants from his inner circle have already pleaded guilty), having already partially lost a $250 million civil fraud case in New York State on a motion for summary judgment the balance of which is still being tried in a New York State court, and having recently lost a defamation and rape case in which he was found to have sexually assaulted a woman and then lied about not having done it. He also faces other civil lawsuits (e.g. a lawsuit as a co-conspirator in a personal injury case of a law enforcement officer injured in the January 6 riot) and other ballot qualification lawsuits which are likely to be decided before the Presidential election is held in November of 2024, just about a year from now.

A Plausible Worst Case Outcome For Trump

From what I have seen so far, it seems more likely than not that District Court Judge Sarah B. Wallace will find that Trump is disqualified from serving as President under this constitutional provision commonly known as the insurrection clause. The Denver Post editorial board thinks that she should find that Trump is disqualified from running for President on this ground.

It also seems likely that the Colorado Supreme Court is likely to affirm Wallace's ruling, if that is the one she makes, on appeal. Then, the question is whether the U.S. Supreme Court would take up the case.

If the U.S. Supreme Court denies certiorari after the this case has excluded Trump from the ballot (which seems unlikely), or if it does take up the case and affirms a ruling of Judge Wallace that Trump is not qualified to serve as President under the insurrection clause (despite its 6-3 conservative supermajority), then Trump's Presidential race is over. So far, Trump's record in the U.S. Supreme Court has been mixed, despite his role in appointing more than one sitting U.S. Supreme Court justice.

This is because Trump is a party actively litigating this case, and the legal doctrine of collateral estoppel says that the resolution any legal issue finally determined in an actively litigated lawsuit against someone bind the person the ruling was made against in all future civil lawsuits. Collateral estoppel is one sided because it is party driven. It binds Trump when he was a litigant in a previous case, but it does not bind new Plaintiffs in other cases, who weren't litigants in previous cases.

So, if Trump loses the Colorado ballot access case (or another other ballot access case to which he is a party brought by different petitioners like a parallel case in Minnesota), after all appeals in the case are exhausted, he automatically loses every other ballot qualification case that is brought against him in every other U.S. state.

What Happens If Trump Can't Run For President?

If Trump is not on the ballot, the 2024 Republican Presidential Primary would be turned upside down, and the prospects of the Republican candidate emerging from the primary in a general election matchup against incumbent Democrat Joe Biden would have to be reevaluated from scratch.

Trump and Biden have been in a statistical dead heat in 2024 Presidential general election polling for months. But many Republicans might not vote at all if Trump wasn't on the ballot. On the other hand, a Republican candidate other than Trump wouldn't be nearly as tarnished by Trump's bad character and criminal prosecutions with moderate swing voters who dislike Biden but see him as the lesser of two evils.

Given the good substantive economic news and news on a variety of other barometers of national well being, and the evidence that shows that when incumbents run for re-election that the race is usually a referendum on the incumbent's performance, it isn't entirely clear while Biden is polling so very poorly. But that is the reality, and even many Democrats, myself included, don't really love him as the Democratic party's standard bearer, even though he is clearly better than any of the Republican challengers that he might face, and is clearly better than any of the stronger third-party candidates.

More darkly, there is good reason to fear the removing Trump from the ballot could drive far more efforts from the far right to use violent political tactics than they already have so far, after seeing their efforts to gain power through the electoral process thwarted.

U.S. Democracy Still Broken

The U.S. Constitution is significantly unjust.

The result is that today, a minority of the population can exercise outsize influence on policies and leadership, leading many Americans increasingly to feel that the government is a captive of minority rule.

Twice in the past two decades, the president was elected while losing the popular vote — George W. Bush in 2000 and Trump in 2016. That had happened only three times in the previous 200-plus years. The dynamic extends beyond the presidency to the other two branches of government.

A new Washington Post analysis found that four of the nine current justices on the Supreme Court were confirmed by senators who represent a minority of the U.S. population. Since 1998, Republicans have had a majority in the Senate a total of 12 years but did not during that time represent more than half the nation’s population, The Post’s analysis of population data and Senate composition shows.

The Post also found that during Trump’s presidency, 43 percent of all judicial and governmental nominees were confirmed by senators representing a minority of the population. Under President Biden, not quite 5 percent of nominees were confirmed by senators representing a minority of the population.

From the Washington Post.

The Judicial Implications Of Gridlock And Its Deeper Causes

A new substack article is entitled: "Imprisoning innocent people is bad Section 2255 should be fixed immediately."

The author isn't wrong.

A recent U.S. Supreme Court ruling holding 6-3 that actually innocent people who had no meaningful ability to litigate their innocence because it results from a new, retroactively effective, interpretation of the law, have to rot in prison anyway, arises in the first place because Congress wrote a flawed law restricting habeas corpus attacks on convictions that could be amended by a simple statute.

The fact that the U.S. Sentencing Guidelines allow federal judges sentencing people for crimes to consider conduct which juries acquitted defendants could similarly be solved with legislation from Congress.

Congress has the power to overturn the court created doctrine of qualified immunity for law enforcement officers who violate people's civil rights, and could similarly reform other non-obvious interpretations of 42 U.S.C. § 1983 that also unjustifiably put the interests of bad cops above the interests of people who have their civic rights violated.

Similarly, Congress could codify Bivens actions which are a more limited court created right to sue federal officials for violating your constitutional rights.

Congress could easily pass a law ending the spectacle unique to the U.S., of forcing young children who can't even speak English and sometimes can't even read or write to represent themselves in deportation hearings that we otherwise require people to have a law degree and pass the bar exam to participate in for someone else. So far, in part due to Congressionally created barriers to Article III court review of the executive branch immigration courts, the courts have failed to address this travesty.

Congress could pass a law amending the Affordable Care Act, so that a misinterpretation of that statute that allows states to deny expanded Medicaid coverage at no cost to state coffers, to clarify that this isn't permitted.

Congress could amend the Federal Arbitration Act to forbid the extreme interpretations of the law that have turned arbitration into an unconscionably lawless forum for resolving disputes that is demonstrably biased against consumers, investors, and employees.

Congress could amend ERISA to tame the absurd lengths to which the Act's pre-emption effect produces unjust and unanticipated results.

Congress could amend the definition of "navigable waters" which courts have recently construed to end federal protections for a great many wetlands, and could expressly expand the authority of the EPA to take measures to prevent global warming, that the U.S. Supreme Court has rolled back.

Congress could rewrite the rules for granting national injunctions and the rules that allow litigants in Texas to basically choose which judges will hear their cases.

Congress could pass laws on the interstate sale of abortion inducing drugs so that U.S. law on the subject wouldn't be forced to hinge on who judges interprets a 19th century statute.

Not all bad court decisions can be overcome by rewriting laws that the courts have misinterpreted. But the interpretation of federal statutes still makes up the largest share of the docket of the U.S. Courts of Appeals and the U.S. Supreme Court, so statutory reforms could make a huge difference.

Why doesn't this happen?

It doesn't happen because it has grown so difficult to pass laws on any issue upon which there is potential partisan disagreement that doesn't involve government spending or appointing Presidential nominees to top federal jobs. It takes the convergence a majority in the U.S. House, supermajorities in the U.S. Senate (which still have the filibuster and other minority privileges for most kinds of legislation), and Presidential support to pass a federal law. 

If a single political party doesn't have both trifecta control of the House, Senate and Presidency, and significantly more than a bare majority in the Senate to either overcome the filibuster or overcome a handful of dissenters in one's own party, signifiant legislation is impossible. And, those conditions have been few, far between, and underutilized by the party in power when they were present. Hostile courts can further complicate the task.

Passing ordinary legislation that is then upheld as constitutional is harder in the United States than in almost every other country in the entire world. In most parliamentary systems, the head of government always has majority support in the lower house of parliament (when it is not unicameral) and an upper house of parliament, if there is one, serves primarily a delaying function, which makes it much easier for the ruling party or ruling coalition to pass ordinary legislation.

It also doesn't help that very few countries have the extreme flaws in its democracy that the U.S. does associated with the Electoral College, unequal representation of voters in the U.S. Senate, routinely necessary supermajorities to pass ordinary legislation due to the filibuster and other quirky Senate rules, disenfranchisement of the residents of the District of Columbia and Puerto Rico which each have more people than some U.S. states, single district plurality voting's spoiler effects, pervasive gerrymandering, elections administered by partisan elected officials, political parties who have no say over who their own candidates will be, and dismal voter turnout by international standards. 

For example, Turkey, in areas ruined by earthquakes just a few months earlier, has better voters turnout than the best performing U.S. states, and has virtually no gerrymandering due to its proportional representation system, and is also not troubled by spoilers due to its direct Presidential elections based upon the popular vote with a requirement that the plurality winner secure a majority to be elected without a runoff election. 

When correcting even obviously flawed court interpretations of legislation (or just plain old obviously flawed legislation) by passing new laws becomes too difficult, the courts, which adjudicate the status quo until new laws are passed, become excessively powerful at the expensive of Congress and the Presidency.

If the barriers to passing ordinary legislation were less daunting, the partisan tilt of the federal courts right up to the U.S. Supreme Court, would matter far less. Bad court decisions would be overturned swiftly with corrective legislation, and in response, courts would avoid making decisions that interpret legislation in inappropriately wooden and unjust ways in the first place.

Of course, the problem can't be entirely laid at the feet of the institutional design. A variety of reforms of the legislative and electoral process could solve those design problems if there wasn't another deeper problem. 

The deeper problem is that the United States is deeply divided politically, because it is deeply divided culturally. There are few times in recent U.S. history when there has been fewer issues upon which there is a broad bipartisan consensus, and there have been fewer moderates to bridge divided between the two major parties.

You would think that there ought to be a consensus that people whom we know have not committed a crime shouldn't continue to rot in prison for decades to come.

You would think that there ought to be a consensus that five year olds who don't speak English shouldn't have to represent themselves in deportation hearings.

You would think that there would be a consensus that federal government officials shouldn't be able to intentionally violate any of your well-established constitutional rights with impunity.

You would think that there would be consensus that someone shouldn't have to spend an additional decade in prison because a judge thinks by a preponderance of the evidence that someone committed a crime that a jury acquitted that defendant of committing.

But there isn't the kind of broad bipartisan consensus needed to pass laws reforming these seemingly "no brainer" statutory reforms. The Republican party (and even a handful of conservative Democrats or members of Congress who caucus with Democrats in Congress) is collectively, overwhelming opposed to passing any of these reforms.

It is hard to say why this political party is opposed to these kinds of measures. 

But basically, the Republican party has become a neofascist, far-right movement. Its base of working class, less educated, older, Evangelical Christian whites, especially white men, feels incredibly aggrieved. They don't care about reality or governing well. They are ready to resort to violent threats and tactics, and to metaphorically burn down the entire government, in order to postpone or reverse the political and demographic trends that are on track to permanently relegate them to becoming an irrelevant political fringe group. So, as a result, they have no qualms about blocking even common sense reforms. They want to provoke a crisis in the hope that in that kind of crisis environment they will have a better chance of holding onto their political clout and privileged status than they will if the system works the way it would if everyone were making policy in good faith.

How did they get this way?

One big problem has been growing economic inequality.

Working class wages have been almost stagnant for almost fifty years, and working class unemployment rates have stayed mostly high, while incomes for college educated people have soared and college educated people have experienced sustained, very low unemployment rates. Mostly, working class white men haven't actually seen their inflation adjusted incomes actually fall, but they have stayed stagnant, while black Americans, Hispanics, and women have all seem much greater progress over the last fifty years from a previously dismally low state. As jobs opportunities for women have grown dramatically in the last fifty years, and their own economic prospects have stagnated, their ability to form stable families has collapsed. 

Rather than being providers for their families, they have become economic dead weight dragging down their female partners and children. Their economic failures create situations where their children are subjected to abuse and neglect driven by economic struggles, until the state intervenes and breaks up their families.

Some of them are also dimly aware that the stability of marriages for their college educated couple peers has actually improved at the same time. They blame the immorality that those college educated people have imposed upon them, even though declining morality and acceptance of gay rights has nothing to do with their plight and is just a scapegoat.

The real problem is that low skilled jobs have moved off shore where labor is cheaper for better quality workers, or have vanished entirely as technology has replaced lots of low skilled workers who aren't very productive with far fewer medium and high skilled workers who are vastly more productive. 

Our society no longer needs nearly as many men with little education but hands on abilities to do physical labor as it did in the 1950s and 1960s when the rest of the world was still recovering from World War II, millions of men had died in the war, technology had not yet revolutionized the means of production, the baby boom was keeping women out of the work force, and mass unskilled immigration hadn't yet begun.

Cultural norms that they used to take for granted in a predominantly Christian, predominantly white, less educated era where LGBTQ people were forced into the closet, and male dominance in the family and workplace were taken for granted have collapsed. Psychologically, this makes them feel like outsiders and strangers in their own land.

Their economic malaise for their social class has produced deaths of despair and made conspiracy theories look attractive, because they can't make sense of their world. 

They have embraced religion just as secular beliefs are dramatically on the rise nationally, because religion thrives when it protects threatened cultures and can insulate them from a changing world where they no longer fit.

They are attracted to political violence and guns, because an ability to threaten to use violence masks the fact that in other domains of life they have become ineffectual and impotent. They are sick and tired of losing, day in and day out, in economic and social interactions to better educated people who've managed to find a place in the thriving upper middle class educated establishment or its coattails. The mastery of information and knowledge that this class possesses, which they who've never liked or been good at schooling or book learning can't attain, leaves them constantly outsmarted and struggling to preserve their increasingly fragile self-confidence and egos. So, rather than try to improve themselves which feels futile, they've turned on knowledge and intelligence and education itself, and have started to view science with suspicion and distrust.

There's a huge generation gap in these kinds of beliefs. Their children are far more liberal and far less conservative Christian than they are. Sustained immigration has diversified the nation ethnically, religiously, and culturally. Their own self-destructive responses to their condition is leading them to die early, a trend most dramatically in evidence in the anti-vax movement during the COVID pandemic. Far fewer people are dropping out of high school and far more people are going to college or at least getting some college even if they don't secure a degree. They are fighting their culture's decline in numbers and relevance, but even they can see the writing on the wall. Most of them recognize, at least subconsciously, that they are fighting an ultimately futile rear guard action in culture wars that their side will eventually lose, but want to keep fighting it at least for the rest of their own lives, the rest of us be damned.

The uptight upper middle class college educated conservative intellectuals who used to provide the policy ideas for the right have been left adrift. They have now fled the movement in favor of either the Democratic big tent, or the no man's land between the small and rowdy Republican tent and the Democrat's tent, while former blue collar union men, whose union jobs are no more, have crossed over to the Republican tent.

The ultra-rich have stuck around, not because they have much in common with their working class fellow party members whom they hold in quiet contempt, and have made lemonade out of lemons by playing and manipulating the grass roots of their party to achieve their own selfish ends that don't benefit their grass roots supporters at all. The ultra-rich are staying with the GOP for the same reason that Muslims and conservative black men stay the course with the Democrats: because the other party is a threat to their very continued existence, even if they have many points of agreement with it. The ultra-rich risk betrayal at the hands of their own increasingly populist party, but so far, most of them see this as the lesser of two evils.

Despite the fact that Democrats hold the Presidency and a razor thin Senate majority, a decades in the making ultra-conservative Supreme Court, a razor thin majority in the House, and trifecta control of many red states, has currently brought conservatives to a high water mark. They've rolled back abortion rights by fifty years in a huge, mostly contiguous swath of the nation. They've ended affirmative action in higher education. They've brought the nation to the bring of a default on the national debt. Their anti-woke movement is making the most concerted move to roust liberal politics from schools, colleges, universities, and businesses since McCarthy's Red Scare. They've expanded access to firearms and in their heartlands, reduced the risk of criminal liability for using them. They've gerrymandered for all they are worth, bent election rules, and made it harder to vote. They've embraced the war on science with open arms. They're starting to nibble at ways to advance white Christian nationalism. They've tried to flip homophobia from illegal behavior in most forums to government mandated behavior. They've further polarized the nation and made a failed coup attempt that only encourages them to try again next time. They've rolled back labor laws to the nineteen teens.

Will this high water mark last?

Probably not. But there's an outside chance that it could, at least in part of the nation, and that's terrifying.