One Pundit, One Vote
On "fewer but better" voters, the fate of the Indian Child Welfare Act, and more.
I was working on a print article all last week, so I don’t have anything new on The New Republic website to offer this time.1 But I do have a few thoughts about the widely derided piece by National Review’s Kevin D. Williamson that went up last Wednesday. While wading into the debates surrounding Georgia’s new election law, Williamson asked a not-as-bold-as-he-thinks question: What if voter suppression is actually good?
Much of the discussion about proposed changes to voting laws backed by many Republicans and generally opposed by Democrats begs the question and simply asserts that having more people vote is, ceteris paribus, a good thing.
Why should we believe that?
Why shouldn’t we believe the opposite? That the republic would be better served by having fewer — but better — voters?
His springboard for the “discussion” was a piece published by his NRO colleague Dan McLaughlin earlier last week. In it, McLaughlin laid out a case against what he described as “mandatory voting.” I don’t agree with the conflation here of actual mandatory voting in places like Australia, which fines citizens who don’t cast a ballot, with automatic voter registration and mailing absentee ballots to every registered voter. There’s still no obligation to actually do anything. Nor do I share McLaughlin’s position that ample logistical planning and rigorous consideration should be expected of every voter, though I can at least understand where McLaughlin is coming from there.
Williamson went a few steps further. McLaughlin is unwilling to take steps that would ensure that more casual voters can participate in the democratic process; Williamson wants to actively exclude those voters from it. He pointed to felony disenfranchisement and age limits as proof that Americans already accept some limits on the franchise. Then he justified measures like those pursued by Republican state lawmakers across the country, especially voter ID laws, as just more of the same.
We could verify eligibility at the polls rigorously and easily, if we wanted to, just as we have the ability to verify who is eligible to enter the country or to drive a car. Of course that would put some burdens on voters. So, what? We expect people, including poor and struggling people, to pay their taxes — why shouldn’t we also expect them to keep their drivers’ licenses up-to-date? If voting really is the sacred duty that we’re always being told it is, shouldn’t we treat it at least as seriously as filing a 1040EZ?
There would be more voters if we made it easier to vote, and there would be more doctors if we didn’t require a license to practice medicine. The fact that we believe unqualified doctors to be a public menace but act as though unqualified voters were just stars in the splendid constellation of democracy indicates how little real esteem we actually have for the vote, in spite of our public pieties.
There are a few problems here. One is that people can go to jail or face financial penalties if they don’t file tax returns, which creates a stronger set of incentives for folks than civic pride. Another is that “unqualified doctors” can kill people, while “unqualified voters,” whatever that means, aren’t really a threat to life and limb. Yet another is that drivers’ licenses aren’t actually all that easy to obtain for some people. From a 2018 story by NPR on voter-outreach organizations in the Deep South:
Studies show that the people who are most likely to be prevented from voting by ID laws are not only low income, but also African-American or another racial minority. That has been true of the roughly 600 people that Spread The Vote has worked with.
Another statistic about the people the group has helped: About 40 percent of them are older than 50. Calvin said those voters often present special challenges.
"If you are elderly and you were born in a rural area [or] born during Jim Crow, you may not have ever gotten a birth certificate."
But the deeper problem is how Williamson perceives democracy itself. You may have detected hints of cynicism and contrarianism in his column so far. This allows him to sound Reasonable and Dispassionate instead of arrogant and contemptuous when sharing his disdain for most Americans’ civic values. “One argument for encouraging bigger turnout is that if more eligible voters go to the polls then the outcome will more closely reflect what the average American voter wants,” he writes. “That sounds like a wonderful thing . . . if you haven’t met the average American voter.” (Spare me.)
That derision leads to his ultimate point: the majority can’t actually be trusted with majority rule. The U.S. already excludes children and the intellectually disabled from the voter rolls, he argued, so we’ve already forsaken the one-person, one-vote principle and further violations are acceptable. He also dismissed voting itself as an “analgesic” that prevents Americans from killing their leaders and dismisses any higher aspirations behind it. “Progressives and populists like to blame lobbyists, special interests, ‘the Swamp,’ insiders, ‘the Establishment,’ vested interests, shadowy corporate titans, and sundry boogeymen for our current straits, but the fact is that voters got us into this mess,” he writes. “Maybe the answer isn’t more voters.”
If this were merely a rant about how dumb and irresponsible the average American is, I’d ignore it for what it was. But instead he admits a deeper motivation towards the end of the column:
If the question is the quality of policy outcomes, then both major camps have reasons to dread genuine majority rule. Conservatives ought to at the very least be mindful of the fact that if policy truly represented the preferences of the average American, then we would have fewer economic liberties and diminished Second Amendment rights; progressives should consider that if policy actually represented the preferences of the average American, then abortion rights would be limited and tax hikes would not fly, while we’d be spending more money on the Border Patrol and less on welfare as work requirements reduced the rolls. Popular opinion does not break down along neat ideological lines.
One could quibble with some of these points for the sake of nuance. Roe v. Wade is broadly popular even if the public also supports some restrictions on abortion. Most Americans think their current tax rates are fair while also favoring higher taxes on the rich. I couldn’t find reliable figures on public support for Customs and Border Protection, but a Pew survey in 2019 found a majority of Americans have unfavorable views of Immigration and Customs Enforcement. These aren’t home runs for the left-liberal side of things, of course, but they also aren’t strike-outs.
The more interesting data is what Williamson omits. Two-thirds of Americans want marijuana to be legalized.2 Nine in ten Americans want universal background checks for gun purchases. A clear majority of Americans support Medicare-for-all; a supermajority of them even want a public option for health insurance. And when it comes to the major items of President Biden’s big infrastructure plan, Americans range from warmly supportive of funding airport improvements and building energy-efficient homes, to absolutely bonkers for replacing lead water pipes and modernizing roads and highways.
Indeed, what Williamson seems to be worried about here is a country where majority rule actually exists—unshackled by gerrymandering in the House, geographic disparities in the Senate, or structural biases in the Electoral College. He distrusts the people because the people apparently don’t agree with him about all much. And so Williamson says he wants a “better” voter to decide the nation’s fate. But a “better” voter sounds indistinguishable from one who just acts and thinks like him. And like Republican officials around the country right now, he’s willing to support just about anything to give them an unearned edge.
How far can Congress go to ensure Native children are adopted by Native families? The Fifth Circuit Court of Appeals had one hell of a time trying to answer that question. Last last week, the court issued a gargantuan 325-page decision in Brackeen v. Haaland, which challenged most of the key provisions of the Indian Child Welfare Act of 1978. So fractured were the judges that they had to write a six-page summary just to explain how the rest of the opinions turned out.
The case springs from a lawsuit filed by a white evangelical couple in Texas that sought to adopt a Navajo and Cherokee boy in their foster care. State officials and the Navajo Nation then found a Navajo family that would take him in instead. Under the ICWA, states have to give considerable deference to placing Native children with Native families. The Brackeens eventually succeeded in adopting him after filing the lawsuit, which was supported by the state of Texas and right-wing legal groups, but continued to attack the ICWA in court. (More on that procedural oddity later.)
The ICWA is hardly a new or novel law. It provides an essential bulwark against the removal of Native children from their cultures and communities. In the past, those removal efforts were part of an intentional effort to wipe out tribes by forcibly assimilating their future generations into mainstream American society. To prevent similar abuses, Congress passed the ICWA to ensure that tribes have the opportunity to keep Native children within their own tribe, or at least with another tribe. The law enjoys widespread support from members of both parties, from state and local leaders, and from the tribes themselves.
But the Brackeens’ lawsuit was assigned to Judge Reed O’Connor, a George W. Bush appointee to the federal district court for northern Texas. O’Connor is notorious in legal circles for eagerly handing victories to conservative litigants on dubious legal and constitutional grounds. The Supreme Court is currently weighing his 2018 ruling, for example, that found the entire Affordable Care Act unconstitutional because Republicans in Congress had zeroed out the individual-mandate penalty. That decision was widely criticized not just by proponents of the law, but even by conservative legal experts who’d previously argued against the ACA in court.
I won’t bother breaking down the entire en banc3 Fifth Circuit ruling in Brackeen, but three things are worth noting. First, the court ruled that Congress didn’t exceed its constitutional powers by passing the ICWA in general. O’Connor had ruled in 2018 that because the law strongly favored Native tribes and families, it violated the Fourteenth Amendment’s ban on de jure racial discrimination. But as any first-year law student who’s read a single Indian law case can tell you, tribes are generally treated as sovereign political entities in American constitutional law, and not as racial groups. O’Connor ignored that bedrock precedent out of either ignorance or malice. Had that portion of his ruling stood, it would’ve taken a wrecking ball to tribal sovereignty across the board.
Second, the Fifth Circuit fell short of upholding some of the ICWA’s core provisions. The judges split evenly on whether the placement preferences for Indian families and Indian foster homes violate the Fourteenth Amendment. They also split evenly on whether those preferences exceed Congress’s authority when applied to Native families and foster homes that aren’t affiliated with the child’s tribe. When an appellate court is tied, it upholds the district court’s ruling but doesn’t establish it as precedent. So O’Connor’s rulings against the tribes on those matters will stand, but the damage is effectively limited to his courtroom for now.
Third, and perhaps most importantly, this case probably shouldn’t exist at all. Judge Gregg Costa noted that neither O’Connor nor the Fifth Circuit should have decided the matter because they can’t actually do anything to change it. From his partial dissent, cleaned up:
It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption. That’s right, whether our court upholds the law in its entirety or says that the whole thing exceeds congressional power, no state family court is required to follow what we say.
There is a term for a judicial decision that does nothing more than opine on what the law should be: an advisory opinion. That is what the roughly 300 pages you just read amount to.
Federal courts don’t issue advisory opinions because Article III of the Constitution only allows judges to adjudicate “cases and controversies,” not idle musings by frustrated litigants. This rule is important in every matter that comes before the court. But violating it here is all the more egregious because of the long shadow of history. Here’s how Costa wraps up, emphasis mine:
Why bother with these objections to the substantive aspects of today’s opinions if, as I have explained, they will have all the binding effect of a law review article? Because the procedural and substantive problems with this case are two peas in the same activist pod.
Judicial restraint is a double victim of today’s tome. The court ignores standing requirements that enforce “the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498 (1975). And a willingness, even eagerness, to strike down a 43-year-old federal law that continues to enjoy bipartisan support scorns the notion that “declar[ing] an Act of Congress unconstitutional . . . is the gravest and most delicate duty” that federal judges are “called on to perform.” Blodgett v. Holden, 275 U.S. 142, 147–48 (1927) (Holmes, J., concurring).
Whither the passive virtues? Alexander Bickel, The Supreme Court 1960 Term Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).
Whither the “conviction that it is an awesome thing to strike down an act of the legislature approved by the Chief Executive”? Robert H. Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics 323 (Legal Classics ed. 2000).
Heaped, one must conclude, on the pile of broken promises that this country has made to its Native peoples.
In short, the Brackeen case is an egregious attempt to gut tribal sovereignty itself—or, failing that, to deal a devastating blow where it may matter most. Any effort to repeal or rewrite the ICWA to the tribes’ detriment would never make it through a congressional committee, let alone Congress. And so right-wing legal activists asked the friendliest judge in the friendliest circuit to rewrite the law for them on weak procedural grounds. It’s unclear yet if any of the parties will ask the Supreme Court to intervene. If they do, all eyes will be on Justice Neil Gorsuch, the tribes’ strongest ally on the high court, to help set matters straight.
A few loose ends. Look, I’m not a stocks guy or a finance guy. I don’t pretend otherwise. But the GameStop thing earlier this year made me realize I probably shouldn’t be ignorant about how bonds and equities actually work. So I’ve tried reading more books and articles about it over the last three months. All of them speak highly of index funds, especially for the hands-off investor. Then I read a fascinating dissent of sorts this week from The Atlantic’s Annie Lowrey:
Indexing has also gone small, very small. Although many financial institutions offer index funds to their clients, the Big Three control 80 or 90 percent of the market. The Harvard Law professor John Coates has argued that in the near future, just 12 management professionals—meaning a dozen people, not a dozen management committees or firms, mind you—will likely have “practical power over the majority of U.S. public companies.”
This financial revolution has been unquestionably good for the people lucky enough to have money to invest: They’ve gotten better returns for lower fees, as index funds shunt billions of dollars away from financial middlemen and toward regular families. Yet it has also moved the country toward a peculiar kind of financial oligarchy, one that might not be good for the economy as a whole.
It’s worth reading the whole piece, but some of the data points she unearthed about the concentration of power here are worth highlighting. The Big Three index-fund firms—Vanguard, BlackRock, and State Street—now “cast roughly 25 percent of the votes in S&P 500 companies,” Lowrey noted. And the anti-consumer effects of owning huge chunks of entire economic sectors is starting to become clear: One study she highlighted found that “common ownership of airline stocks had the effect of raising ticket prices by 3 to 7 percent.”
Speaking of things my math-challenged brain struggles to grasp, physicists may have just discovered a whole new world of physics. I admire the marketing tactics. They just about wrapped up the Standard Model—the iOS for visible matter and most of the fundamental forces in the universe—when they confirmed the existence of the Higgs boson a few years ago. Now, like Samuel L. Jackson at the end of a Marvel movie, the humble muon has given us a teaser of what might come next. From The New York Times’s Dennis Overbye:
Evidence is mounting that a tiny subatomic particle seems to be disobeying the known laws of physics, scientists announced on Wednesday, a finding that would open a vast and tantalizing hole in our understanding of the universe.
The result, physicists say, suggests that there are forms of matter and energy vital to the nature and evolution of the cosmos that are not yet known to science. The new work, they said, could eventually lead to breakthroughs more dramatic than the heralded discovery in 2012 of the Higgs boson, a particle that imbues other particles with mass.
Overbye is extraordinary at translating complex aspects of physics into easily accessible language. (I often read him for inspiration when trying to explain thorny parts of Supreme Court cases.) So it’s pretty striking to see how vague he is in describing what this all might mean. Slate’s Andrew Keating interviewed a particle-physicist-turned-journalist who also offered some insight on the matter. I won’t pretend to know what the ultimate implications of muons acting weirdly could possibly be. But I’ve spent more than a few nights staring at the ceiling and pondering the fact that roughly 95 percent of the universe’s mass and energy is totally invisible, and I would really like to know what’s going on there.
Lightning round! New Kyrgyz constitution just dropped. Bitcoin now consumes more electricity than Sweden and Ukraine. Justice Stephen Breyer probably isn’t going to retire this year. California moved one step closer to universal public banking. Yahoo Answers will soon be Yahoo Answered. Hello, Soviet Lord of the Rings. Farewell, énarques. Thank you, Dr. Kariko.
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Williamson is personally aligned with the public on this one, but National Review’s target audience is generally not.
Latin for “every judge on a particular federal court of appeals hears the case instead of the usual three-judge panel.”