What If Our Slacker Totalitarian Starts Eating Kale And Exercising?

Theorists of tyranny have compiled taxonomies: aristocracy (and its shadow side, oligarchy), democracy (and ochlocracy, or mob rule), and monarchy (and tyranny).  Plato’s interlocutors in Republic book 8 discuss the various types of regime but Book 9 dives deep into the most dangerous form of government, tyranny.  Aristotle was seemingly more sanguine in his Politics, giving more equal time to each type.  Madison and Hamilton, in the Federalist Papers, defended the possibility of energetic yet non-monarchical and non-tyrannical government via separated powers and checks and balances (see #47 and #51).  Twentieth-century totalitarianism (see Hannah Arendt’s Origins) appeared to be a new type of regime, in its erasure of any boundary between private and public life; also in that, unlike the pairs democracy/mob rule, aristocracy/oligarchy, and monarchy/tyranny, totalitarian rule has no “neutral” or non-abusive twin.

If American voters manage to check Trump’s power while there is still time to limit the damage, it may be because they sense that with his relentless tweeting and headline-grabbing, he is just not going to leave us alone and let us ignore him for awhile while we pursue our own happiness.  If the Republicans, in spite of all their gerrymandering and efforts to suppress voter turnout, do lose control of one or both houses of Congress, it may be because enough of us have gotten irritated and embarrassed enough to bother to vote in a midterm for a change, and limit the damage from the presidential bull-with-his-very-own-china-shop-all-the-time.

So far I believe we have been fairly lucky that our slacker totalitarian president apparently spends a great deal of his time sitting around eating unhealthy food and tweeting at his TV, though he and his minions have made plenty of messes by  sabotaging healthcare, environmental regulation, etc.  But what if he (trigger alert, plug ears, la la la la la) has a learning curve?  What if he actually reads article II of the Constitution and realizes just how much more he can do, and takes Admiral Ronny Jackson’s advice to adopt healthier lifestyle choices?  Where will we be able to hide then?

 

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The Ripe, the Moot, and the Ugly: Least Dangerous Branch Week(s) Coming Up

In Federalist Paper 78 Alexander Hamilton gave reasons why the judiciary would be the “least dangerous (branch of government to) the political rights (prescribed by) the Constitution”: the executive “dispenses the honors” and “holds the sword of the community”; the legislature “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated; the judiciary in the end has only the power of judgment, and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But by the 1830s de Tocqueville would write that “armed with the power of declaring laws unconstitutional, the American magistrate perpetually interferes in political affairs. . . . Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” (book I, chapter 16). Alexander Bickel, in his landmark book The Least Dangerous Branch, written in the aftermath of the 1954 Brown v. Board of Education school desegregation decision, defended judicial review, used judiciously! Both Samuel Alito and John Roberts have pointed to Bickel as a formative influence. But Bickel died the year Richard Nixon resigned, so he cannot tell us whether those justices are coping with the “countermajoritarian difficulty” and practicing the “passive virtues” in a Bickel-worthy statesmanlike way (could the three women be more Bickelian?).

Will this year’s most deeply-contested decisions be viewed as judicious in the future? Linda Greenhouse, who covered the Court for decades, is apprehensive. Her recent Opinionator column in the NYT called out the conservative faction for being just that, a faction in a hurry (she does not mention Bickel’s theme of passive virtues–see the August 2012 Scotusblog online symposium for that theme and many others, with much historical context on mootness and ripeness in the Warren Court era). Her particular warrants, so to speak, are that a 2003 affirmative action ruling could and should have been left to settle and rest for 25 years, and that the conservatives are grabbing too quickly for “the next potential vehicle for shutting down affirmative action.” Why? Out of fear that their five-four majority could slip away any day now. Greenhouse does not address the impending voting rights decision, but there is plenty of cause for concern that the near-unanimous 2006 Congressional renewal–until 2031–of the Voting Rights Act will be subjected to ill-advised countermajoritarian scrutiny.
The same-sex marriage issue is unlikely, I think, to get a clear resolution this year, though the justices ought to realize that the issue is somewhere between moot and absurd for most youthful Americans.

Is the Court going to issue unripe and/or soon-to-be-moot rulings? That may be the ugly reality, though I hope for surprises.