You may have heard that Liam Morrison, the Middleborough teenager who has sued for the right to wear an anti-transgender T-shirt to school, has appealed his case to the U.S. Supreme Court.
I wouldn’t get too excited about it, at least not yet. It strikes me as highly unlikely that the court — even this court — will want to undo precedents holding that public school officials have broad powers to control their students’ communications, whether it be the right to censor the high school newspaper or, in this case, to decide that a T-shirt’s message creates a disciplinary problem.
At the heart of Morrison’s argument is a form of fake both-sides-ism — that is, pro-trans messages have been allowed in school, so why not anti-trans messages? The problem with this is obvious. Anti-trans messages express hatred toward kids who are LGBTQ, while pro-trans messages harm no one.
As Christopher Butler reported Wednesday for The Enterprise of Brockton, Morrison is being represented by the Alliance Defending Freedom (ADF), described as a “Christian” law firm. (Scare quotes warranted given that there are many varieties of Christianity, some of which even take seriously Jesus’ admonition to love one another.) Sandy Quadros Bowles of Nemasket Week and Travis Andersen of The Boston Globe reported on the appeal as well.
According to the Southern Poverty Law Center, which tracks hate groups, the ADF agenda includes “the recriminalization of sexual acts between consenting LGBTQ adults in the U.S.” The organization also supports sterilizing trans people in other countries, has linked LGBTQ people to pedophilia and has “claimed that a ‘homosexual agenda’ will destroy Christianity and society,” the SPLC says.
Morrison, then a seventh-grader, was sent home from the Nichols Middle School twice in the spring of 2023 — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”
Morrison sued and lost in U.S. District Court, and his appeal was rejected by the U.S. Court of Appeals for the First Circuit. Chief Judge David Barron ruled that school officials did not act “unreasonably in concluding that the shirt would be understood … in this middle school setting … to demean the identity of transgender and gender nonconforming students.”
As for whether Morrison has a chance of riding his T-shirt to glory before the U.S. Supreme Court, as I said, it seems doubtful, but who knows with this group? It only takes four of the nine to agree to hear the case. And as Emily Birnbaum has reported for Bloomberg, the ADF “has won 15 Supreme Court Cases since 2011, and four since 2020, when Justice Amy Coney Barrett tilted the court into a 6-3 conservative supermajority.”
Still, it’s hard to imagine that the court is going to want to empower public school students to promote any message they want, especially if local school officials argue that to do so would be disruptive and create disciplinary problems. We’ll see.
I want to call your attention this morning to two attempts to ban books — one from the left, which will ultimately prove futile, and one from the right, which may be more effective. Together, I think they tell us something important about our culture’s ongoing separation into two very different spheres of reality.
Let’s consider the right-wing book-banning campaign first. We tend to regard such efforts as something out of a Southern Gothic tale, but this one takes us no farther south than a few miles from Route 128. In Abington, a group of parents is attempting to ban “This Book Is Gay,” by Juno Dawson, from the Middle/High School Library. The book that has come under fire across the country.
“This Book Is Gay” was the subject of a recent meeting by the Abington School Committee. According to the Abington News, “It is traditionally kept in the section of the library reserved for high schoolers. However, during Pride Month last June it was included in a display along with other LGBTQ books.”
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One parent told the committee that displaying the book was “a definite sign of indoctrination and endorsement by the schools,” adding: “Children become victims of the cultural environment that is highly suggested to them. I prefer an environment that is healthy and safe instead of installing ideologies not consistent with family values.”
One complicating factor: A gay selectman, Alex Hagerty, also spoke out against the book, saying that he believed it indulged in outdated stereotypes. But the superintendent of schools, Peter Schafer, said that he supported the book’s availability to older students because, even though parts of it are graphic, “those chapters are really warnings to the reader about safe sex and behavior.”
Because of what sounds like a clash between state and local policies, it’s not clear what will happen next. I hope common sense prevails and that “This Book Is Gay” will remain available in the library for any student who wishes to seek it out. But I’m not holding my breath.
***
Justice Barrett
The futility on the left comes in the form of a $2 million book contract given to Supreme Court Justice Amy Coney Barrett by Penguin Random House. According to Martin Pengelly of The Guardian, more than 250 people from the literary world have signed an open letter calling on the publisher to re-evaluate its decision to publish Barrett’s book, citing her vote to overturn overturn Roe v. Wade earlier this year. The letter states in part:
Barrett is free to say as she wishes, but Penguin Random House must decide whether to fund her position at the expense of human rights in order to inflate its bottom line, or to truly stand behind the values it proudly espouses to hold. We … cannot stand idly by while our industry misuses free speech to destroy our rights.
So, free speech is “misused” if it expresses views that you don’t agree with? Good Lord. Leaving aside the fact that the health of the First Amendment doesn’t depend on Barrett’s getting $2 million, this turns freedom of expression on its head.
What’s especially absurd about this is that Barrett’s book will (or might?) be published by Sentinel, a Penguin Random House imprint that is specifically focused on conservative titles and whose authors include right-wing figures such as Rod Dreher, the late Ken Starr and Nikki Haley. If the campaign against Barrett’s book succeeds, will the entire Sentinel imprint be next?
The absurdity is that there are conservative publishing houses (Regnery comes to mind) that would be glad to take Barrett’s book and provide her with just as much publicity as she would get from Penguin Random House — maybe more, since they could use its cancellation as a marketing ploy.
In an ideal world, kids would be able to borrow “This Book Is Gay” from their school library and Amy Coney Barrett could publish her book with a mainstream outfit. But that’s not the world we live in anymore.
The U.S. Supreme Court’s decision to overturn Roe v. Wade is so huge and terrible that it’s difficult to get our arms around it. So let me just look at a small chunk of it — the deeply undemocratic nature of our electoral system. You can find various polls with differently worded questions, but, in general, the public was firmly in favor of retaining Roe before Thursday’s decision. So how did we get here?
I’ve written about this before, but it’s worth repeating. A healthy modern democracy is based on the will of the majority, with protections in place for the minority. That’s why we have the Bill of Rights. Unfortunately, we now have a situation where a minority of voters is so super-empowered that how the majority votes almost doesn’t matter. Consider:
Donald Trump’s three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote in 2016 by nearly 3 million votes. That’s a significant margin. But because the Electoral College favors small states, which are mostly Republican, Trump was able to defeat Hillary Clinton.
Those three justices were confirmed by a Republican Senate that represented far fewer Americans than the Democratic senators did. In the current 50-50 Senate, Democrats represent nearly 42 million more people than Republicans. That’s because each state gets two senators, regardless of population.
The skew is only getting worse as liberals move to more urban areas. Indeed, you can expect that one of the effects of the Roe decision is that young people will flock to urban areas in blue states — thus empowering small-state Republicans even more.
If something can’t go on forever, then it won’t. More than half the country isn’t going to put up with being permanently disempowered. I don’t know how we get from here to there, and make the changes we need to our outmoded 18th-century Constitution, but I’m confident that we will. Change looks impossible — then, suddenly, everything changes all at once.
A few words about the extraordinary scoop broken Monday evening by Politico that the U.S. Supreme Court has put together a draft opinion overturning Roe v. Wade, thus freeing states to ban abortion.
First, we all make fun of Politico. I make fun of Politico. It succeeded by taking the horse-race approach to politics and amping it up on steroids, which hasn’t been good for anyone. But Politico is a large news organization with many talented journalists, most definitely including Josh Gerstein and Alexander Ward, who broke the Roe story. It is possible to both generalize about Politico’s shortcomings and praise it when it produces extraordinary work.
Second, Brian Stelter, writing for CNN’s “Reliable Sources” newsletter, flagged a tweet from SCOTUSblog that is worth pondering: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.
Good. If the right-wing majority is going to turn back the clock on reproductive rights by 50 years, then let the entire court descend into scorpions in a bottle. The interests of society as a whole may be better served by the spectacle of a court in chaos. We all need to understand that this is now a rogue institution, undone by Donald Trump’s illegitimate choices of Neil Gorsuch, who holds the seat that should have gone to Merrick Garland, and Amy Coney Barrett, rushed through at the last minute.
Third, the draft decision cites the 1896 Plessy v. Ferguson as a case whose outcome was so egregiously wrong that it had to be overturned in its entirety. Plessy failed to recognize the rights of Black Americans under the 14th Amendment and was in fact reversed in Brown v. Board of Education 58 years later. The decision to overturn Roe, though, is more like Plessy than Brown in that it takes away long-established constitutional rights.
Historian Heather Cox Richardson compares the draft opinion to the infamous Dred Scott decision, the 1857 Supreme Court case that took away what few rights Black Americans had at that time and paved the way for the Civil War. She writes in her newsletter:
And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years. Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.
The decision isn’t final yet, but I don’t see how we can expect it to change. This is a dark day in American history — the latest in many dark days. God help us all.
In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.
But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.
Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)
The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.
This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.
Last spring I warned that the media might seek out dubious issues to even things up if former Vice President Joe Biden built a substantial lead over President Donald Trump. So far we haven’t seen much of that. But Biden’s reluctance to say whether he would try to expand the size of the Supreme Court has proved to be something of a speed bump for the Biden-Harris campaign.
“Harris Dodges Questions on Support for Supreme Court Packing at Debate,” said CBS News following Sen. Kamala Harris’ encounter with Vice President Mike Pence. “Biden and Harris Need an Answer on Court Packing,” proclaimed The Atlantic. And they were hardly alone. (Thanks to Eric Boehlert’s newsletter, Press Run, for rounding up the headlines.)
The problem with this focus on “court packing” isn’t that it’s not a legitimate issue. We would all like to know if a Biden administration would seek to add seats. What’s really at issue, though, are matters of language and context.
“Court packing” sounds like an abuse of power rather than something the president and Congress can do as a matter of law. The context, of course, is that the Republicans, under Senate Majority Leader Mitch McConnell, stole one court seat by refusing to consider Judge Merrick Garland, President Barack Obama’s choice to replace Justice Antonin Scalia, even though the nomination came months before the 2016 election. And now McConnell is on the verge of stealing a second seat by ramming through the nomination of Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg even as ballots in the presidential election are already being cast. Yet it is Biden who is facing questions.
“What makes this so especially bizarre,” writes Boston College history professor Heather Cox Richardson in her newsletter, Letters from an American, “is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology.”
Once Barrett has been confirmed, and there is little doubt about that, Trump will have named three of the nine justices under the most undemocratic, unrepresentative circumstances imaginable.
As we all know, Trump lost the popular vote to Democratic nominee Hillary Clinton by 48% to 46%, a margin of more than 2.8 million. What’s less well known is that Republican senators represent fewer people than Democratic senators even though they hold the majority.
During the 2017-’08 session, for instance, when Justices Neil Gorsuch and Brett Kavanaugh were confirmed by slim margins, (54-45 and 50-48, respectively), the Senate’s 50 to 52 Republicans (the number changed several times) represented about 44% of the country’s population. Democrats and independents who caucus with them represented 56%. The 53 Republicans who will decide Barrett’s fate represent less than 47% of the country. (Click here for a chart breaking down the numbers. The 2017-’18 figures are based on 50 Republican senators.)
If you’re thinking this is not how we ought to conduct business in a democracy, well, you’re right. And yet there is reason to doubt that modern Republicans even support the idea that the majority ought to rule. Last week, for instance, U.S. Sen. Mike Lee, R-Utah, tweeted a message right out of the authoritarian playbook: “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”
Democracy isn’t the objective; liberty, peace, and prospefity are. We want the human condition to flourish. Rank democracy can thwart that.
And sure enough, new research by psychology professor Bob Altemeyer and Nixon administration alumnus John Dean shows that Trump supporters are increasingly eschewing elections in favor of the strongman system of government, according to The Washington Post. For instance, about half of Trump supporters agreed that “once our government leaders and the authorities condemn the dangerous elements in our society, it will be the duty of every patriotic citizen to help stomp out the rot that is poisoning our country from within.”
Which brings me back to where I started. A president who lost the popular vote will have nominated three Supreme Court justices, confirmed by a Senate controlled by a party that represents millions fewer Americans than the opposition Democrats. Two of those three justices, Gorsuch and Barrett, will owe their presence to Republican norm-shattering. And Republican support for democracy in general appears to be waning.
Given all that, the possibility that Biden may seek to enlarge the size of the court sounds like a good move.
Several years ago I offered a few ideas on how to fix the court — to repair the damage done by McConnell and restore its image as a trusted institution. The court is still in drastic need of fixing. So let me offer a few more — none original with me, but proposals I’ve gleaned following the death of Justice Ginsburg. More than anything, the court has become too important. The following steps would make every vacancy less a matter of life and death than it is now.
First, if Barrett is confirmed, Biden is elected president and the Senate flips to blue, Democrats should expand the court by two members. Some progressives have argued for four new seats, but that would be an overreach. Two new seats would restore the ideological balance of the court that existed before Justice Scalia’s death. Perhaps the number could move back to nine over time.
Second, justices should be subjected to term limits. Eighteen years sounds about right.
Third, each president ought to get the same number of picks per term. Two? If a president is re-elected, then yes, they’d get four picks, which is a lot. But the problem now is that there isn’t enough turnover, and what little there is takes place mainly because of death.
I’ll leave it to better minds than mine to figure out how to square two picks per term with an odd-numbered court of either nine or 11 members.
Our system is profoundly broken. The challenges we face don’t lend themselves to easy solutions. Applying the one-person, one-vote rule that is at the heart of democratic governance, for example, would require major constitutional changes in the form of abolishing the Electoral College and changing the way we choose senators. That’s not going to happen any time soon.
So let’s move beyond the gotcha issue of whether Joe Biden wants to “pack” the Supreme Court. We can reform the court by turning down the temperature and moving it out of its current central role in our political culture. Expanding the size of the court, perhaps temporarily, as well as imposing term limits and guaranteeing a regular rotation of justices, might return us to the days when all but the most extreme nominees were confirmed with consensus support.
From the moment President Trump appointed Judge Amy Coney Barrett to the Supreme Court, the right has responded with the bogus allegation that opposition to her confirmation was grounded in anti-Catholicism. In fact, it is her right-wing views on reproductive rights and LGBTQ issues, and her membership in another organization, that has attracted notice.
On Thursday, The New York Times published an in-depth look at People of Praise, a religious group to which Barrett’s family has belonged for many years. I urge you to read it, because it strikes me that People of Praise fits at least a few of the definitions that cult expert Steven Hassan identified in his book “Combatting Cult Mind Control” some years back.
The two that come to mind are the group’s secrecy — to this day, Barrett has never confirmed her membership, although it seems pretty well established — and its method of keeping members in line by having others watch over them in what sounds like a pretty suffocating manner. Indeed, Barrett was at one time listed as a “handmaid,” in charge of keeping tabs on others, although the group has since dropped that unfortunate label.
“It wasn’t sinister, but there was a strong sense of membership, of being ‘You’re in or you’re out,’” a disillusioned would-be member named Annie Reed told the Times. “It made me wary.”
It’s hard to know what to make of this, and we shouldn’t get carried away. But if Senate Majority Leader Mitch McConnell insists on moving ahead with confirmation hearings before the election, we need to get a thorough airing of People of Praise and exactly how it has shaped Barrett’s beliefs.
