SCOTUS Openly Advances Fascism

SCOTUS Openly Advances Fascism; Paul Street

Refuse Fascism Episode 162

Sun, Jul 02, 2023 7:16PM • 54:48

Paul Street 00:00

It is an epic, precedent overturning decision. It’s framed around speech, when in reality the precedents were about conduct. What civil rights are about are about conduct, you know, like restaurants denying service. People should be in the streets about this instead of just going: Oh, well, gee, this will help the Democrats in 2024. One of the key aspects of fascism is this militant dedication to the restoration of traditional social hierarchy and the tearing up of the old previously normative constitutional rule of law and that’s what we’re seeing.

Sam Goldman 00:49

Welcome to Episode 162 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of the show. Refuse Fascism exposes analyzes, and stands against the very real danger and threat of fascism coming to power in the United States. In today’s episode, I’m chatting with my dear friend and fellow member of the Refuse Fascism Editorial Board, Paul Street to get into some key rulings from the SCOTUS term that just wrapped up, and the Democrats’ response to the escalating fascist threat.

Thanks to everyone who goes the extra step and rates and reviews the show on Apple podcast or wherever you listen. If you appreciate the show, and want to help us reach more people who want to refuse fascism, go, be a gem, write a review, drop five stars wherever you listen to pods. I really can’t tell you what a big difference it makes. Please tell the people out there in podcast land why you listen, and they should to. Subscribe/follow so you never miss an episode. And of course, keep up all that great commenting, sharing on social media. Thank you to everyone on Patreon for supporting the show for $2 or more a month. Thanks, patrons! Not one yet? Go become one at patreon.com/RefuseFascism.

Before we get into it — we’ve got a lot to cover today — I did want to say just a few things about the Moms for Liberty summit that is wrapping up today, as we record this Sunday morning. Cheers to all who protested, all the historians, educators and librarians who issued statements in opposition. As we’ve talked about before on the show Moms for — quote unquote — Liberty, aka moms for fascism have their National Summit in Philadelphia this week. They trained their Christian fascist stormtroopers to run for school boards and terrorize teachers, students and the LGBTQ community at large with genocidal aims.

For those interested in the who’s who of the summit and more background on Moms for Liberty, I highly recommend checking out a Vice article by David Gilbert, titled The GOP is lining up to pay homage to America’s newest extremist group, Moms for Liberty — it’s linked in the show notes, check it out. Moms for Liberty are the maternal shock troops for Christian fascism, playing the same role as Mothers of the Fatherland in Nazi Germany. The fascist destruction and remaking of public education in the service of a genocidal program is their mission.

This week, they made a bold statement in Philadelphia that Black folks, LGBTQ people, and other oppressed groups will be erased from education and the public record if we do not stop them. On Friday, they made clear they’re moving from school boards to the national playing field, propping up a Trump or DeSantis to seize the White House and hammer in a fascist nightmare, where there are no safe spaces. The question that we all need to be asking is: How far are the decent people going to let this go? Before I bring Paul on, I just wanted to share some highlights of what Trump said to this rabid group of “mama bears.”

First off, let’s listen to how they greeted Trump. This was the welcome that he got. It was the loudest applause to any speaker. [Crowd chants U.S.A.] That was the start. And this went on to him bragging about how he stacked the court. Remember, he was speaking on the same day that affirmative action was killed, the same day that, in the name of “religious liberty,” bigots were emboldened, and the same day that students were given a big fuck you as the Supreme Court rolled back debt forgiveness. He bragged about the overturn of Roe and then went on to suggest a series of sweeping education policies that would go far beyond the measures he took while in office, particularly regarding race and LGBTQ issues.

I’m gonna read something that is deeply disturbing, so I just want to put that out there. He said, “On day one, I will sign an executive order instructing every federal agency to cease the promotion of sex or gender transition at any age. They’re not going to do it anymore. I will declare that any hospital or health care provider that participates in the chemical or physical mutilation of minor youth no longer meets federal health and safety standards. They will be terminated from receiving federal funds, effective immediately, and I will ask Congress to send a bill to my desk prohibiting child sexual mutilation in all 50 states.”

In his speech, he talked about signing a new executive order to cut federal funding for any school pushing critical race theory, or any discussion of racial, sexual or political content. He talked about overhauling school discipline and juvenile justice to get “violent monsters out of your children’s school classrooms.” He signaled interest in the gutting of the Federal Department of Education, abolishing teachers tenure, and getting rid of accreditation groups that “have allowed our colleges to become dominated by Marxist Maniacs and freaks.” A lot of people do the whole: It’s just talk. Well, this talk is deadly. This talk is deadly. He talked about what he was going to do to our immigrant siblings, to our Muslim siblings, and then he went and did it. Let’s not just talk about it being talk. It has real world implications.

This Friday, the Supreme Court wrapped up their term a term that I see as a legal offensive in the fascist onslaught, ending affirmative action in higher education, formalizing the right of business owners to discriminate against LGBTQ people in the name of “religious liberty”, blocking Biden’s student debt relief plan, and further crippling the EPA. We talked about that last one in a previous episode. Oh, and next term, they’ll hear a case on whether or not domestic abusers can have guns, because abortion bans just haven’t killed enough women. So there is a lot in these decisions to get into — the legal stage of fascist escalation and, now, the implications of these decisions.

With that, I want to welcome back on Paul Street. You know him, you love him. He is a fellow contributing editor at RefuseFascism.org, a frequent guest of the show. He’s a historian. He’s an author. Did I mention he’s got a Substack? See the show notes because you’re gonna want to subscribe. He does audio posts too, so check them out. Welcome, Paul. Glad to be talking with you.

Paul Street 07:34

Oh, yeah, I’m doing all right. I wanted to mention something else under the category of it’s just talk. Within the last week, Trump was speaking to Ralph Reid’s religious coalition, the freedom and faith [Faith and Freedom], group I think it is, [SG: It was a week before. Yeah.] Yeah, okay, the week before. I swear to God, he got up and said he’s going to change immigration law so no communists and Marxists and socialists can be allowed into the country, but then he briefly said, and furthermore, we got to deal with our own homegrown Marxists and communists and socialists and going to need to be deported — and he would undertake actions to deport them. That’s fucking fascism. All these people who said: Don’t get Trump derangement syndrome — Don’t get crazy about this guy, and don’t use the ‘f’ word, and don’t talk about fascism. I mean, how fascist is that?

Sam Goldman 08:23

I’m really glad you brought that up Paul. It’s a perfect example. Let’s start by discussing some of these cases, and let’s start with the killing of affirmative action. So just the basics: Students for Fair Admissions v. President and fellows of Harvard College and Students for Fair Admissions v. the University of North Carolina. The Supreme Court decided this Thursday, June 29. The Supreme Court ruled that the use of affirmative action and admissions programs at two universities was unconstitutional.

In the majority decision, Chief Justice John Roberts said the admissions programs could not be reconciled with the “guarantees of the Constitution’s Equal Protection Clause.” In Justice Sonia Sotomayor’s dissent, she said the decision “rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits.” What do we need to know, Paul? What are the implications of this decision? Talk to us about it.

Paul Street 09:27

It’s a horrible decision. There’s some parallels with the Dobbs v. Jackson decision last year the one that got rid of a woman’s constitutional right to an abortion. There’s a twist in this decision. Roberts, the way he wrote it, he pretends that he’s still keeping alive the possibility of race being considered in college admissions via the mechanism of the student essay, but the reality is a decision is very clear. It says flat out that race can not be considered as a factor in college admissions. It is an epic precedent-overturning decision. Dobbs V. Jackson, the precedent that they overturned was Roe v. Wade, 1973.

This Roberts decision overturns a few cases: Aki versus California, ’78, Grutter versus Bollinger in 2003, and Fisher versus the University of Texas, as recently as 2016, that last decision. Which is very interesting because it’s very telling about how extreme Donald Trump’s impact was on the composition of the court. It’s really unusual for the Supreme Court to overturn previous Supreme Court decisions. In all their decisions over the many years, less than one in a hundred have overturned Court precedent.

Usually when you overturn precedents, you are supposed to conduct yourself in accord with what the legal profession calls stare decisis, which is a Latin term that means let the decision stand to honor precedent — which doesn’t mean all past decisions stand. That would be completely and totally absurd, right? We’re glad that the Plessy versus Ferguson decision did not stand. We’re glad that the Dred Scott decision did not stand. But when you overturn precedent, you’re supposed to make some kind of freaking argument about how things have changed how something fundamentally has changed in such a way as to invalidate that previous decision.

Just like in the Dobbs decision, in this affirmative action decision, Students for Fair Admissions, they don’t even attempt to do that. As Sotomayor pointed out in her dissent, the court does not even attempt to make the extraordinary showing required by stare decisis. And that’s for some very good reasons: nothing changed at all to make woman’s right to an abortion any less legitimate or tenable last year than it was in ’73 — nothing has changed at all to make the case for including race as a factor in college admissions any less legitimate in 2023, and it was in 1978, or 2003, or as recently as 2016. United States has not miraculously suddenly become a colorblind society where opportunities from birth are equally shared across racial lines. Quite the opposite.

If anything, the opportunity structures have gotten worse for Black folks and people of color since 1978. What changed was the freaking composition of the court; the creation of a Christian fascist majority dedicated to the restoration of traditional social hierarchy — gender hierarchy in the case of Dobbs, and racial hierarchy in the case of Students for Fair Admissions. What happened was that Donald Trump and Mitch McConnell, the Senate Majority Leader, when the Senate was under Republi-fascist’s control, collaborated to create a 6-3, far right, Christian fascist, racist, sexist court, including at the very last minute a woman enrolled in a male supremacist Hand Maid’s cult. There’s some differences between the Dobbs decision and this decision, but those are some really, really key parallels.

Sam Goldman 12:50

What are the implications that you see of this decision in higher education? I think it might be helpful to remind people: While affirmative action didn’t erase white supremacy, that there was an impact made in access to higher education. What difference does it make to not have it?

Paul Street 13:10

One of the differences with the Dobbs decision is the Dobbs decision reaches all the way down into the poorest and blackest parts of red state America. It just ups the level of hell for the Black working and underclass in states where Dobbs has led to abortion bans. Affirmative action has, I think, never quite went as deep. It’s really going to hurt, like here in Chicago, the kids, the Black kids, who graduate from some of the better magnet schools like Walter Payton on the North side and Whitney on the West side, not to mention the Black kids from the middle and upper class at elite private schools like the Lamp School down in Hyde Park or Francis Parker Latin School.

However, we do have some experiments. Already, California had a referendum, I believe Michigan had a referendum, and another state had a referendum, against affirmative action. Contrary to Justice Roberts’ notion that there’s no measurable outcomes from this kind of stuff, those referendums lead to precipitous declines in Black admissions to the better public universities in those states and decline in diversity and classroom experience. And in who’s graduating, and it’s a rollback of the very real if a limited, Black ascendancy into the middle class, also the upper class — thinking of the Obamas, for example. So, it’s it’s a roll back of a very real civil rights gain achieved by affirmative action.

Sam Goldman 14:36

One thing that I’ve been thinking about is that through mass struggle, and people demanding it, when affirmative action was put into law coming out of the struggles of the 60s and 70s, it was forcing this country’s government in some way — yes, a small way — that for centuries, the United States and its institutions discriminated against Black, Latino, and other oppressed people. In this roll back, I think it’s really important that it’s seen as a reinstitution and reinforcement of the most overt white supremacy.

Paul Street 15:12

And that it does so in the name of colorblindness. [SG: Yeah] And actually, offensively, cites the Brown v. Board decision. The 14th Amendment, which was won by civil war, including the enlistment of Black soldiers in the end of slavery, and and it takes the 4th Amendment and the Civil Rights Act to propagate this myth of colorblindness, and it connects with this strange argument that we really can’t measure. One of the creepy things about the previous affirmative action rulings is that they were all premised not on repair or reparation or remediation for centuries of racism, but on this notion that diversity is good for white students, that diversity is good for corporate America, that it would be good for white kids to come out of college with the experience of racial diversity because they’re going to have that in the job market and in the corporate sector and all that.

There’s always this argument that it couldn’t be about remediation or racism, because, as Roberts claims, this is a long standing court claim — you just can’t really measure the impact of remediation. Which is just complete and total unmitigated bullshit. Of course, you can. When you properly fund schools, when you open doors to more admissions, you do get more folks of color coming out and being able to access opportunity.

Sam Goldman 16:28

We could do a whole episode on the colorblind constitution, and what absolute bullshit that is. I wanted to turn now to more gutting of civil rights. Let’s get into the Christian fascists’ biggest victory of this term, 303 Creative LLC versus Atlantis aka Masterpiece Cake case 2.0. On Friday, June 30, six three decision from Justice Neil Gorsuch, the Court upheld that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs/speaking messages with which the designer disagrees. Tell us a little bit about this. What will this mean in the real world? And what is this opening the door to?

Paul Street 17:14

This is a really horrible decision with a huge slippery slope about it, and it should not be underestimated. Footnote to this thing is the premise on which it was based, that this woman — Lorie Smith, web designer — that she was approached by a gay couple to create a website for their marriage. Apparently, this never even actually happened. It’s just a hypothetical, right?

Sam Goldman 17:36

Stop. The guy does not live in that state [PS: Colorado], is married to a woman, never happened. That didn’t matter to any of the justices.

Paul Street 17:45

They want to make law in a particular kind of way, and so they just disregard normal standing requirements. It’s extremely dangerous. It’s considered free speech in this ruling, if you don’t want to engage in a commercial transaction and provide a commercial service in the real public world. Because you object to the sexual orientation of people who are seeking your services. Where the hell does that end? Can a checkout person at a grocery store refuse to scan and do their job when they see a transgendered couple or a gay couple? Or think about it, or an interracial couple. Can an OB/GYN doctor now refuse services to an LGBT person?

Can I dream up some insane religion that says that Black people are inherently inferior and that women are inherently inferior, and on the basis of this belief that I have a First Amendment right to have, deny them commercial services? I mean, this opens up a door for a vigilante Jim Crow-ism that goes beyond the LGBT issue. This thing, is an extremely horrific and horrible decision and it’s framed around speech, when in reality the precedents were about conduct. There’s nothing about her speech rights. If she wants to go off and say horrible, terrible shitty things about LGBT people, she’s free to do that. But that it’s about speech is absurd.

What the precedents and what civil rights are about are about is conduct. Like restaurants denying service in the real world marketplace to people because they’re Black, or because they’re gay, or because they’re transgendered or Latino or whatever, fill in the blanks. But, conduct! And they frame it around speech. It’s a pathetic decision, it’s got huge standing issues, and it misconstrues precedent. It’s another example of people just making law the way they want to in accord with their Christian fascist, white nationalist worldview.

Sam Goldman 19:38

I really agree. Paul, I just wanted to add in a couple of things that stood out to me. One is — you talked about it being framed as violating the First Amendment’s freedom of speech, when it’s really, like, codifying the right of bigots who are business owners to not serve gay people in certain situations. That’s not free speech. That’s weaponizing religion. It’s extremely dangerous, and as you said, a slippery slope into other ominous discrimination. I think that it’s really heavy to think about discrimination against LGBTQ people as a violation of free speech. People need to just sit with that and the absolute bigotry that is codifying.

It’s worth comparing that the plaintiff in this case didn’t want to just express her bigotry. Today, you can go and stand on a corner and say the most vile shit against gay people. [PS: Right. She can do that.] She could even do it on the House floor. You can do that. But this case was saying that she needed to express her bigotry in her business. She needed to have her commercial enterprise be a vehicle for her Christian fascism, and she wanted to be able to discriminate at work. And the court said thumbs up. Now folks have said that there’s limits and this is a narrow question and all this thing, but I couldn’t find — maybe you could — where the limiting principle is. Where are the boundaries that state that this will limit itself to only discrimination against gay folks? or, as awful as that is, and don’t twist my words [PS: Exactly] — that’s terrible in it’s own right — only refusal for weddings?

I think this could. As Moira Donegan has pointed out that “the case threatens to unravel a whole matrix of anti discrimination laws governing public accommodations, redefining public facing commercial enterprises as speech and discrimination as personal expression.” I think your point about anybody is saying: Oh, I’m a sandwich artist. Oh, I’m an ice cream artist. Oh, I’m a burger flipping artist. Anybody can be an artist. [PS: chuckles] And therefore it’s their expression and my religion is against it. It’s really, really [PS: Yeah] scary how far this can go, and I think that we’re gonna see a lot of cases.

Paul Street 22:04

This has the potential to be as big in the history textbooks of this period, I think, as the affirmative action is decision. It should not be underestimated, it’s really wide open. And you’re absolutely right, it has no limiting principle. When the Supreme Court, if and when it goes along with the Christian fascist assault on mifepristone — the medical abortion pill — next year. If they do that, they’ll do it in connection with the archaic Comstock Act. They’ll limit it as an anti obscenity measure, as absurd as that is. They won’t be giving a green light to any whack job anywhere to take down any drug they want to, right. It’ll be specific in that regard. There’s no specific limiting thing going on here. It’s wide open, if that makes any sense.

Sam Goldman 22:44

Yeah, no, that does make sense. And I just think that people really need to, as I said before, sit with, but not only sit with, you know, confront and then act accordingly with the notion that bigots, Christian fascists, are being given more dignity, more respect, more value than our LGBTQ siblings.

Paul Street 23:06

It’s just horrific, and not to leap ahead too far, but people should be in the streets about this, instead of just going: Oh, well, gee, this will help the Democrats in 2024.

Sam Goldman 23:14

I definitely want to go there. But before we go there, I want to talk about a couple more things. One, I want to talk about Biden v. Nebraska, another decision that came out on Friday, June 30, another six three decision, this one from Chief Justice John Roberts. In the best case, the court said, the Secretary of Education lacked the authority under the Heroes Act to rewrite the statute to the extent of canceling $430 billion of student loan principles.

Paul Street 23:44

Oh, I love this decision. And here again, we have standing issues. It’s just complete b.s. [SG: By love, he means hates.] [both chuckle] That’s right, and in dark comedy kind of way. It’s just ridiculous standing issues in this particular case. Who is the harmed person in this? It’s an agency called MOHELA, that apparently is, what, a private/public collaboration — it’s a body that made money off of servicing student debt payments in the state of Missouri. The Attorney General of Missouri decided that they were the aggrieved partner and that they had standing to be against this very modest, just $10,000 to $20,000 student debt relief program. Also the suspension of student debt payments under the COVID national emergency.

The Hero Act is very clear, the Department of Education does have definite power in cases of National Emergency to do exactly what it is. It’s just a case of the court saying: Hey, we’re the judicial branch and we are god, and no, the executive branch can’t do what statutory power says they can absolutely do. The Roberts decision is just hilarious. He actually likened the COVID-19 student debt relief under Trump and then under Biden to the French Revolution. He actually likened it to, like, guillotines, like this terror on this, like, Robespierre and the nobility, in an assault on democracy. He said it’s the same relationship to democracy that the French Revolution had to the rights of nobility.

First of all, that’s kind of funny right there, the feudal nobility has somehow identified with democracy. But he uses this — I love this — he cited something that he invented in 2015, called the major questions doctrine, the courts have the right to negate statute and statutory power in cases of questions of vast economic or political significance. What does that mean? It means the Supreme Court is god. If the government does anything that impinges upon the power of the capitalists, that impinges upon the capitalist mode of production, [mocking voice] the major questions doctrine says that the courts have the right to cancel their decisions. It’s a hilarious decision. I love it, but I hate it, because it’s just so preposterous.

Sam Goldman 25:57

What it’s gonna mean for people is really heavy. Yes, it was a modest thing, but it actually did have an impact. One thing that also struck me, as they go on and they say: [mocking voice] We’re textualists. We’re directly reading the Constitution. That’s what we’re using. But when the text doesn’t lead them to a policy decision they want, they just throw it out and make up what they want.

Paul Street 26:22

Let’s not forget the fascist content of the hatred of higher education and people of knowledge and the notion that they’re all just a bunch of lazy bums sliding through life on their asses getting philosophy and English and History degrees that we can no longer pay for, and they just want to have a free ride, and all this nonsense. I remember, you talked to Jason Stanley before and he has one of these key narratives of the fascist ideology is this notion that we’re the hard working people, we’re the real Americans, we work hard, and all these lazy bums who just want to get off. I’m sorry, this is, a lot of this, is working class people trying to access the educational certificate that’s required for any kind of minimal level of upward mobility and security in this society. And guess what, they can’t afford it because they weren’t born with a silver spoon in their mouth and freaking tuition has skyrocketed to a monstrous degree in higher education — which is a real problem in and of itself.

Sam Goldman 27:14

I think it’s really important that you were putting it in the context of where they’re going and what the larger fascist projects that this is a part of. I think that’s very helpful. I did also want to say, to connect to what you were saying about putting the Supreme Court above all else, into being the gods, the deciders, the fact of the matter, they just threw out an authority that was granted by Congress to the Biden administration. It didn’t matter. I think that there’s some points on this and the unaccountability of the Supreme Court, a lawless court, that we’d gotten into In last week’s episode, folks should check it out.

Paul Street 27:51

Yeah, we’re the gods. I remember, the old Karl Rove quote: You all sit around and try to understand history and what we’re doing. We just make it.

Sam Goldman 27:59

People have pointed to Merrill v. Milligan, and Moore v. Harper. Merrill v. Milligan, was a voting rights case that involved Alabama and would potentially disenfranchise Black voters. Moore V. Harper, the case of the total looney tunes independent legislator theory. That both of those did not go forward show that this Court “is showing new caution”. How should we understand this?

Paul Street 28:28

I didn’t even know that Merrill v. Milligan thing was up, and so I only found out about it after the fact. Roberts did shoot down a really egregious redistricting program, what Alabama had done. They had put every Black voter in the state in one district, so that there would only be one black congressperson in seven congressional districts in the state. This is a standard, long standing gerrymandering practice all across Red State America. This was really egregious. I suspect Roberts looked at that and said this is just a bridge too far. The Moore v. Harper, I knew that was up, and I did not expect it to pass through, particularly after looking months ago at some of the oral arguments about it.

Just so listeners know this thing is insane. The Independent State Legislature theory says that state legislatures would be free to supervise and manage federal elections within their state jurisdictions anyway they want — just an absolute carte blanche to gerrymander how they want, to voter suppress how they want. Carried to its ultimate, logical, insane conclusion, it would have said that it’s constitutional for states to defy the popular majority vote in presidential elections, and send — guess what? — alternate electors slates to Congress for certification in the 2024, and all future presidential elections. They would be free to do that if they’re popular majorities in their states made the mistake of voting for a Democrat and not voting for a fascist like Donald Trump or Ron DeSantis.

This is just a bridge too far. It would have just too completely ripped off the democratic facade of American bourgeois so called democracy. It’s just laughably evident what a dictatorship we really are beneath all our pretense. I think that the calculation was this court seems to be happy right now to win victories on culture war issues; on religious freedom, on advancing patriarchy, on advancing white supremacy. They don’t seem to be on board yet with the full on fascist end of what little remains of democracy. They did not get fully behind Trump’s war on the 2020 election. They’re not stopping Jack Smith and the DOJ from investigating Trump on election obstruction on January 6th coup attempt or on the documents stuff.

I think there’s a lot of calculations going on here, all sort of at one of the same time, about this stuff’s a bridge too far. But also, that their court is already a big, fucking, huge freaking legitimacy problem already because of the crap they’re doing on race and gender and gay rights. But also because these corruption scandals that are just spilling out over the last few weeks — maybe it’s more than the last few weeks — all these billionaire trips and all these hanging out with right wing, big money people. Alito, it’s just egregious, Clarence Thomas, it’s just egregious. There’s even issues with Roberts and this big money job that his spouse got after he became the Chief Justice. They have a long game sense of we don’t need to go that far — we don’t need to make our illegitimacy even yet more evident and outrage people against this institution which has very low popularity right now. It’s down to, like, approval in the 30s somewhere, the Supreme Court.

And, I don’t think they really need this independent state legislature theory, or they don’t need this extreme over the top gerrymandering program in Alabama to win; to potentially get full triple branch Republi-fascist control of the federal government in 2025. I think that the they think the electoral college is in place for them to do that. They think the absurdly mal-apportioned and powerful U.S. Senate works to their advantage. They think the lineup in the 2024 Senate elections look very good for them, and they’re right to think that. There’s a bunch of gerrymandering and voter suppression already in place, not before them, in red state America to further their agenda, and they’ve got the courts. So they don’t need this shit to get what they want. So this is them playing the long game and being smart and realizing that they don’t need everything right now.

Sam Goldman 32:23

I do also want to point out that three, three justices of the Supreme Court gave that theory a thumbs up. [PS: Think about that.] That’s Thomas, that’s Alito, that’s Gorsuch. We should not feel good about that, in the least. There was some analysis that Jeff Sharlet put out — he put it out on Twitter — I just want to share with listeners an excerpt of it. This is a tweet from Jeff, there was a thread that he did, I cut out a part of it, you can see Jeff’s Twitter, @JeffSharlet, for more. “When SCOTUS said no to the “independent legislature” coup attempt—that’s what it was—the usual “the center holds” crowd spoke, again, of “return to normality.”

Then court kills affirmative action, debt relief, and slams LGBTQ+ human rights. Friends, fuck your “center.” The new American fascist movement to which the Court knowingly” — I’m excerpting — “or naively makes itself accessory achieves its goals through a mix of lawfare, threat, myth, and actual violence… Institutional and physical violence go hand-in-hand. Queer bashing just got a vote of confidence from the court. It will increase. White supremacism violence will increase on campuses even as BIPOC presence falls… The “responsible” POV is that such “individual” acts of violence have nothing to do with judges & legislators who systematically create circumstances that all but guarantee them. Some actually believe this; I suspect the justices do.

Others wink and relish the hate they fan. The difference isn’t terribly important to the queer kid beaten up, the Black woman sexually assaulted on a campus where law supports those who see her as less than. Naive & knowing, what the Germans called “stirrup holders” & open brutes, now march arm in arm. And yet we hear pundits now saying SCOTUS faces a problem of “legitimacy,” a “perception problem.”

Thus those who cling to a center that doesn’t exist imagine fascism will be defeated—as if justices aren’t in for life, as if they haven’t shown they don’t give a damn. Liberal pundits who haven’t yet admitted to themselves the scale of the anti-democracy forces say the Court “is moving us back 50 years.” It’s a hell of a lot worse than that. It’s not going backwards, & it’s not “conservative.” It’s openly accelerating *toward* full fascism. And that’s the end of Jeff Sharlet’s thread, check it out. I think there’s a lot of truth in there.

I do disagree a little bit with him on who he sees as fully fascist on the court and who he sees as as not, and that’s not essential, and I do think that there actually is value in people seeing the court as illegitimate. I think that that’s actually an opportunity and something I want to get into with Paul in a minute. But I did want to share it, because I do think that it is important to both acknowledge: What fucking center are you talking about? The fascist threat, and the way that these different forces work together to really reign hell on people, and that this is all going for the full elimination of civil rights and democratic rights in this country.

I wanted to talk briefly about Biden and the Democrats response to these gut wrenching SCOTUS decisions. Both Biden and Harris gave remarks about the affirmative action decision, while Biden at least had the I guess, courage to say that discrimination still exists in this country. It’s glaring that neither statement made any mention of the actual history that affirmative action aims to overcome of mass kidnapping and enslavement of segregation and inequality — with the treatment of black people as literal property enshrined into law, including by the Supreme Court with the active participation by the most prestigious institutions of higher learning.

Instead, from the champions of diversity, we hear the continued lionization of the literal slave owners who wrote the U.S. Constitution and received suggestions from the President to admissions office to use other metrics to work around this ruling. In his statement, he literally tells colleges: You can use individual stories of racial discriminations. But more broadly, they should replace racial affirmative action with an increase in focus on poverty based metrics, as though these address the same issues. This is the definition of accommodation. But it’s also worse than that.

Consistent with their reactions to the other rulings, consistent with Biden’s recent comment that because he’s Catholic, he’s “never been big on abortion,” we continue to see the Democratic Party leadership monopolize opposition to fascism and then openly undermine the most important fronts in this war. At no point in any of his comments, does he address the fascist nature of the Supreme Court. And when asked point blank whether the court has “thrown into question its own legitimacy” and whether it’s a “rogue court”? Well, he dismisses the notion merely saying that it’s not a normal court.

It’s important to remember that this President commissioned a panel of prestigious legal experts to look into the potential for Supreme Court reform — precisely because of what we’re seeing today — and loaded it with just enough conservatives to make sure this esteemed Ivy drenched body came back with a full throated: I don’t know. [PS: chuckles] I want to hand it over back to Paul, what are your thoughts?

Paul Street 37:49

Boy, there’s a lot there. Hey, by the way, Jeff Sharlet is a friend of the show, and he’s really pretty cool, and he says the “F” word all the time, which stood Biden and Kamala Harris is in the mainstream. Democrats just can’t bring themselves around to do and that’s exactly what we’re dealing with. One of the key aspects of fascism is this militant dedication to the restoration, traditional social hierarchy and the tearing up of the old previously normative constitutional rule of law, and that’s what we’re seeing.

With these decisions, Biden seems to be suggesting that they’re going to have work arounds. It kind of reminds me of how liberals would say: well, the Dobbs decision really doesn’t mean that much, you know, we have the abortion pill — which is slated to be potentially eliminated. But I’ve been hearing liberals say: Well, we’re still going to have diversity anyway. The corporate culture is to attached to it. I’m sorry, the highest offices in the state, the god like Supreme Court are saying you can’t pursue these. Joe freaking Biden, I will never forget between the election and the certification, in this period when we were waiting for the Proud Boys to go into the streets twice before January 6th, en masse, and Trump already absurdly denying the election, and Joe Biden had this big public speech in which he said: “You know, democracy takes a little patience every once in a while, but it always pays off.” And he said: “Because America, and its great democracy, has been the envy of the world for 240 years.” This is what he said.

What a raised middle finger to Frederick Douglass and the slaves of this country! Just be patient, and just freaking hang on. There’s different levels of which you can talk about the court as illegitimate. If you just mean illegitimate because Alito and Thomas are taking money from billionaires. Well, I mean, that’s right, that’s illegitimate. I think about — I think we think about it — in a much deeper sense than that. This Constitution’s particular power is part of an 18th century slave owners Constitution constructed by slave owners, obviously, merchant capitalists, landed gentry, and publicists for whom democracy was completely the ultimate nightmare.

They constructed a system that includes, among other things, an undemocratically elected presidency through the Electoral College, and an absurdly mal-apportioned and very powerful upper chamber of Congress called the U.S. Senate, where every state has two representatives, regardless of how many people are in the state. I mean, if California had the same population to Senator ratio as Montana or Wyoming, you would have like 130 senators or something like that. And those are the two bodies that together appoint this court in the first place. It’s an unelected court and it’s appointed for life. So it’s really illegitimate in that deep sense.

The Democrats, as usual, are complicit in this horrific, right-wing policy. It’s intimately related to not really being able to acknowledge that it’s fascism, or you want to call it Christian white nationalism, whatever, not acknowledging it is part of keeping people sitting on their asses, so they never call people into the streets and the public squares. The streets and the public squares have been completely surrendered to the right wing, it seems to me since the end of the George Floyd rebellion, or perhaps after Kenosha. Even any elementary real serious commitment to bourgeois democracy would be calling for masses of people in the streets.

Instead, they exploit these horrible things, and point everybody to what? [SG: Voting] The killing confines of that great coffin of class consciousness as the historian Alan Dawley once called the American voting booth. And that’s the whole definition of politics. Regardless of the institutional minority rule, the institutional structure of American politics, which is very favorable to the right, which is why they don’t really need the independent state legislature theory or the Alabama thing to prevail and 2025. And, by the way, you’re absolutely right, this 6-3 has nothing to feel happy about in the Moore v. Harper case. My God, three Supreme Court justices — three of them! — went with the independent state legislature theory, which is basically fake electors if we want them in Mississippi or Iowa.

Sam Goldman 41:53

Yeah, I would be remiss if I didn’t also mention in the context of what you’re saying, the constant prettifying by the media. New York Times headlines, like: Affirmative action is dead, campus diversity doesn’t have to be, or” Six ways you can still cancel your federal student loan debt — which lists as one of those ways, death. [PS: Haha, suicide.] Our Sunsara Taylor had tweeted about one of these things: “Liberal addiction to downplaying and immediately adjusting to the latest fascist sledgehammer. How about straight up calling out and FIGHTING this blatant white supremacy!?”

Paul Street 42:27

They can’t stop, they really can’t really stop abortion because we have the abortion pill.

Sam Goldman 42:29

But also, like, we’re gonna find that the nearest workaround immediately accommodating not saying affirmative action is dead. Every person who benefitted should get in the streets every person who hasn’t benefitted it should get in the streets. None of that. It’s like…

Paul Street 42:44

I’ve heard some liberals say that, well, this will be a boon for HBCUs [Historically Black Colleges and Universities], they’re gonna get a lot more people. So that’s gonna fix it?

Sam Goldman 42:50

So, thumb up for segregation. Way to go. That’s basically what they’re saying. I did want to talk a little bit more about legitimacy as we close out our conversation. You provided some really important insight into that already. I just want to note that the Congressional Black Caucus said that the Court has thrown into question its own legitimacy, and that is significant. This rampant fascist — I hate the word extremism, I wish I could think of it good replacement word, severity, I guess — on the court does contain within it potential for big problems for the Court — and to be honest, the larger system in which this Court sits.

The court provides legitimacy to a lot of oppression in my opinion that we see in this society and to the violence that this system wields. I think it is worth thinking about what happens when legitimacy starts to erode or even evaporate. Is there something positive there that could be turned. The fascist remaking of the Court, and it’s work to turn back time, not just a few decades, but centuries, or more, is really ripping things apart. You pointed to the legitimacy numbers, that is heavy. I think that people are asking big questions about all of this. To me, we need to be asking bigger questions about the nature of the United States, and what kind of society we want to live in and what world we want our children to inherit. But I just wanted any of your other thoughts on legitimacy and potential…?

Paul Street 44:23

I think one of the things that the right has done, and it’s an explicit project, is to make government so illegitimate, that people just turn off completely to politics altogether. And they just turn away from it. [SG: So true.] And they turn away from the notion of the idea of a public power that could work for the people; for the broad majority of the people, for the working class. So we give up on the notion of taking public power and wielding it in a very different way.

I’m not opposed to judicial review on principle. I think the kind of socialist society I’d like to live in would probably retain an institution of a particular kind of high court that would keep a watch on policies that violate fundamental principles. But it would be a very, very different kind of court. Just like in a socialist society, I’d like to see the police with an entirely different fashion they, to the whole apparatus of the state would function differently. But getting there, getting to that kind of court, getting to that kind of state, requires a revolutionary, radical mobilization of millions in the streets that the Democrats will just never, never, never get behind.

They will always point everybody to the voting booth as if this is this great form of popular sovereignty, while at the same time, like here recently in Chicago after the more public appearance and slipping into the fundraiser, where the big money donors promised the millions and millions of dollars to keep them on board; don’t rock the boat. Biden said it very well in 2019 to elite donors in Manhattan: If you elect me, nothing fundamentally will change. The sentence is an explicit statement, you know. Certain candor is allowed in discussions with donors, like where Biden actually sort of said to elite donors: [hushed tone] I want to tell you something, I’m going to say something, you know, what’s going on with the MAGA Republicans is kind of a little bit like semi fascist. [laughing] Yeah. And then he stepped back from it.

So the project of delegitimizing government, altogether, is a longtime right wing project is meant to demoralize us, and to stand us down. The right wing pretends to be anti government. It says it’s for the free market and against the big government. It’s against the left hand of the state to use the language of the late French sociologist, Pierre Bourdieu. It’s against any parts of government that do anything decent — therefore, that are inclusive, or for poor people for the working class. But it’s not against the big government that incarcerates and felony marks and tortures and invades and distributes wealth and power upward. It’s all very disingenuous in a very sick kind of game that they play.

Sam Goldman 46:55

Yeah, I do think it’s helpful to see the different ways that people understand and the different forces and their ability to understand and then wield the concept of legitimacy, and the different directions that that can go. I think that for people that are concerned — rightly so, concerned — with the threat of fascism, re-seizing the White House, consolidating power, there is a fight for the future afoot. It would be a very good thing in this moment if, instead of people saying: Oh, this is awful, there’s nothing we can do. Or: Oh, this is awful, we’ve just got to vote harder. If people actually said: You know what, this is absolutely illegitimate. It is illegitimate to have overt white supremacy. It is illegitimate to elevate and weaponize religious bigotry against LGBTQ people. It is illegitimate for whole agencies to be undermined. [PS: Oh, like the EPA.] Yeah.

So that there can be further decimation of the environment. It is illegitimate, and we’re going to be in the streets, and we’re going to call that out, and we’re gonna say enough. I think that that actually would be a positive contribution at a time when the streets and public discourse have been completely surrendered to those who see women, LGBTQ people, immigrants, Black folks, all as subhuman. It’s past time, and we have to turn this around. I do want to give you a moment, if there was anything that we didn’t talk about, anything that we didn’t mention that you want to point listeners to.

Paul Street 48:28

Well, you just mentioned something that I think deserves some emphasis. There were big anti-EPA decisions. In this last court session, it’s just absurdly ruled that the EPA has no authority under the Clean Water Act in wetlands. The EPA is a big target of the right, and they had a ruling in the last session that forbade the EPA from regulating carbon emissions in factories or something like that; just completely nuts. This ecocidal stuff should not be underestimated. There is no racial justice, there’s no socially equality, there’s no democracy, there’s no love, there’s no anything on a dead planet, and we are speeding ahead towards this. It just lurks underneath, behind the headlines as like the biggest issue of our, or any time and it’s inherently a rooted in the operations of the capitalist system — in my opinion.

Sam Goldman 49:11

Before we say goodbye, I did want to point out that Bolsonaro has been barred from running for office until 2030, and how different that is from Trump who is front runner.

Paul Street 49:21

So, when Trump is in, so when Bolsonaro deports, all the communists and Marxists from Brazil, so then Trump’s gonna block them from coming into the United States. [chuckles]

Sam Goldman 49:31

Well, no, Bolsonaro can’t run. I mean, that’s, that’s a different…

Paul Street 49:34

I know, but after 2030 he can, Yeah. Because Trump will be president for life, so, you know.

Sam Goldman 49:39

Yeah, I mean, it’s it’s really frightening. I wanted to return to something that you talked about, the Democrats and Biden’s response. Trump, at his rally last night – it’s just like normal that he is front runner, still — he said, at his rally, on Biden: “This is a sickness of people that needs To be cleaned out, and cleaned out immediately.” I don’t know about you, Paul. But this is eliminationist language. This is. It’s the language of extermination. If it doesn’t sound like the Third Reich, I don’t know what it sounds like. What do you think?

Paul Street 50:17

Nests. That’s animalization, that’s dehumanization This is a nest of vipers. This is a nest of snakes. This is how Hitler talked about Jews, and talked about liberals, and talked about cities. He described cities that were just big dens of inequity and sinfulness and radicalism and just scary. That’s another key theme in in Jason Stanley’s stuff, is this fear of these urban nests. It’s horrific.

I’ll reiterate what I said at the beginning: This guy said he’s going to round up communists Marxists and socialists, deport them from the country. That actually happened in this country. There’s a book out, American Midnight, about when this happened to some degree during an after World War I. There’s real historical precedent, and Trump’s mentor was Roy Cohn, when he was coming up in New York, who was Joe McCarthy’s personal attorney or Senate attorney — a close ally of the McCarthyite Red Scare.

Sam Goldman 51:08

Yeah. And let’s be clear, as much as Paul and I laugh about Biden being called a socialist/Marxist, about any of the Democrats being called communists or socialists, and how that is so far from true, they are being deemed enemies. [PS: Oh, yes, fascism does that.] They are being deemed enemies, and they are not going to stop this nightmare. As we say in our mission statement, the Democratic Party will consistently pull to try to work with, conciliate with, and collaborate with them. There can be no reconciliation with fascism, except on the terms of the fascists. Fascism must be defeated.

Paul Street 51:45

The rules are that the Republicans get to absurdly call the Democrats, socialists and Marxists and communists, and the Democrats hold back except for tiny exceptions from accurate calling the Republicans now a fascist party. It’s interesting that the Democrats don’t redress the mischaracterization of them as socialists, right. It’s interesting that they just kind of let that lay there. I rarely hear them say that. I wrote a piece about that months ago. And it’s intriguing to me If they were to engage in a full throated defense of themselves against the charges of being socialist, they’d have to admit how capitalist they are, and they just won’t do that.

Sam Goldman 52:21

I want to thank you so much, Paul, [PS: Yeah] for spending the past hour or so chatting with me. I always learn a lot. and I know that our listeners do as well. And again, I want to encourage folks to check out Paul’s Substack. It’s linked in the show notes. And don’t just check it out. Subscribe, support, our good pal, Paul and his continued writing, research and all that good stuff. And I want you to have a great rest of your your day, Paul.

Sam Goldman 52:52

Thanks for listening to Refuse Fascism. We want to hear from you. Share your thoughts, questions, ideas for topics or guests, lend a skill. Tweet @SamBGoldman, drop me a line at [email protected]. To connect on Mastodon or to leave us voicemail, check out the show notes.

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