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New book available! David Kaiser, A Life in History

Mount Greylock Books LLC has published my autobiography as an historian,  A Life in History.   Long-time readers who want to find out how th...

Saturday, October 01, 2022

The Destruction of American Politics--A Brief History

 I am now on the last lap (if not the home stretch) of my political history of the United States based on presidential addresses, having finished the draft chapter on Ronald Reagan and George Bush I and begun researching Bill Clinton.  Reagan's rule, I concluded, marked a turning point in American politics comparable to Franklin Roosevelt's, albeit in a very different direction.  Our economic and political elites have been very comfortable with the changes he made, but they left large segments of our population behind.  Those segments became the swing votes in a series of presidential and midterm elections that enabled dissatisfied voters to express their anger, but not to change the country's direction.  Eventually, in 2016, a whole party turned against the establishment completely, and we are still living with the consequences of that shock.

Although Ronald Reagan and Paul Volcker did stop the inflationary spiral of the years 1965-82, they were never all that successful against unemployment, which remained at 5.3 percent when Reagan left office.  The Bush I administration showed that the nation remained vulnerable to recession, and after unemployment reached 7.4 percent, Bush's vote percentage fell from 53 percent in 1988 to 37.5 percent in 1992, with  Bill Clinton winning 43 percent and Ross Perot 19 percent.  Clinton's victory did not however change the direction of the country.  He did raise income taxes on the highest bracket from 31 percent to 39.6 percent, but he also focused on cutting the size of the federal government, getting tougher on crime, "ending welfare as we know it," and moving forward on NAFTA, which he had refused to endorse as a candidate.  He warned that health care costs might rise from 14 percent of GDP to almost 20 percent by 2019 without a major reform, but Congress refused to act.  And in the 1994 midterms the Republicans won the popular vote for Congress handily and gained 54 House seats for a 230-204 majority.  They also gained 8 seats in the Senate and emerged with a 54-46 majority after two Democrats switched parties.  The economy grew during the remainder of his term and he defeated Bob Dole handily in 1996 with 49 percent of the vote, as Perot's vote fell to 8 percent, but neither then nor in 1998 did the Democrats seriously challenge the Republican hold on Congress. And in 2000, eight years of economic growth and the achievement of a balanced budget only allowed Al Gore to defeat George W. Bush in the popular vote by 48.4 percent to 47.9 percent.  Florida, which a post-election recount indicated that Gore might actually have won, was awarded to Bush without a recount by Republican officials and a Republican Supreme Court majority, giving Bush the election.  The Republicans maintained their House majority but lost control of the Senate 51-49 because of another party switch early in 2001. 

The reaction to 9/11 and the Republican exploitation of social issues led by gay marriage allowed the Republicans to narrowly regain control of the Senate and increase their majority in the House in 2002, and Bush managed to win another narrow victory in his 2004 re-election campaign, with a 51-48 percent margin in the popular vote and 286-251 in the Electoral College. Bush also reversed fiscal policy with two rounds of tax cuts to go with a new series of wars, and the deficit ballooned again.  The unpopular war in Iraq led to another popular revolt in 2006, when the Democrats regained control of the House for the first time since 1992, winning 31 seats, and secured a narrow majority in the Senate with 5 new seats.  Then came the housing market bust and the onset of a very severe recession in 2008.  Hillary Clinton, the candidate of the Democratic establishment, had been the overwhelming favorite for the Democratic nomination, but a new face, Barack Obama, excited the nation and defeated her in the primary campaign.  Obama won the biggest Democratic victory since Lyndon Johnson over John McCain, winning the popular vote 53-46 percent and the Electoral College 365-173.  The Democrats also scored another big win in Congress and emerged with majorities of 60-40 and 254-181.  Many believed that a new Democratic era was at hand.

Unfortunately, Barack Obama proved even before he took office that he would not depart from the new post-Reagan economic and foreign policy orthodoxy, appointing Larry Summers as his chief economic adviser and Hillary Clinton as his Secretary of State.  His economic team reacted to the crisis by bailing out the big banks, rather than directly assisting the ordinary Americans who were losing their houses and jobs, and he failed to mobilize the anger in the country against financial interests, as Franklin Roosevelt had done.  Meanwhile, he withdrew troops from Iraq, but increased them in Afghanistan, and orchestrated another disastrous change of regime in Libya. The Affordable Care Act--a very controversial measure--was his only major legislative achievement, and the Republicans regained the House with 63 new seats, 257-178, and wiped out most of the Democratic majority in the Senate with 6 more seats there in 2010.  Obama nonetheless managed to win re-election over Mitt Romney with a 51-47 popular vote margin and 332-206 in the electoral vote, but the Democrats regained only 13 House seats, cutting the Republican edge to 234-201, while increasing their Senate majority to a still-narrow 53-47.  Those margins made any new legislative achievements impossible, and in 2014 the Republicans regained control of the Senate, 54-46, with nine victories, and gained 13 more seats in the House for a margin of 247-188.

Dynasties had become fashionable in this era of American politics, and pundits in 2015 expected Hillary Clinton--Obama's annointed successor--to contest the presidential election against Jeb Bush.  Clinton as it turned out faced a surprisingly serious challenge from another outsider, socialist Bernie Sanders, but defeated him for the nomination.  Neither Bush nor any other elected Republican official, however, stood a chance against the real estate mogul and reality  TV star Donald Trump, who not only ran explicitly against the establishment's policy positions but reveled in violating various taboos of elite American politics and culture.  As I have pointed out here in previous analyses, neither Trump nor Clinton really excited the voters, and neither did as well in the polls as Romney and Obama in 2012.  Clinton won the popular vote 48-46 percent with huge popular majorities in the northeast and on the west coast, but Trump flipped six key states to his side and won the electoral vote 304-227.  The Republicans also won the nationwide popular vote for the House and retained a 241-194 majority, and held on to the Senate, 52-48.  

Trump's main legislative achievement--parallel to George W. Bush and Ronald Reagan--was another round of tax cuts for corporations and the rich, and he was no more successful than Obama in winning the nation to his side.  Two years into his term the Democrats won the popular vote for the House by a whopping 9 percent, gained 41 seats, and emerged with a majority of 235-200, their first since 2008. The Republicans, however, completed their takeover of several red states and gained 2 net seats in the Senate, increasing their majority to 54-46.  

Trump proved in dozens of ways that he was utterly unfit to serve as president, and he was less successful than Bush II or Obama in winning the American people over to his side, particularly after the COVID epidemic struck.  Although in 2020 a number of key states were quite close, Joe Biden--another establishment Democrat--defeated him solidly, 51-47 percent in the popular vote, and 306-232 in the Electoral College.  Yet nationwide--thanks in part to Republican gerrymandering in several states--the deadlock continued.  The Democrats did manage to tie the Senate 50-50, winning control thanks to the Vice President's vote, but they lost 15 House seats, reducing their majority to 220-215.  Biden and the Democrats managed to pass a trillion-dollar infrastructure bill and an important measure focusing on climate change, but neither one has as yet had any real impact in the country.  Meanwhile, inflation has returned with a vengeance after remaining under control for 40 years, and as I write, Republicans and Democrats are estimated to have 68 percent chances of regaining the House and keeping the Senate, respectively.  Social issues, led by abortion and education, have become more important than ever.

On the one hand, the failure of either party to reverse the economic trend towards inequality in the last 40 years has kept the electorate swinging back and forth, punishing first one party and then the other and contributing to gridlock.  Meanwhile, one party--the Republicans--have completely abandoned modern political traditions, denying the validity of elections, contesting them by various strategies up to and including insurrection, and relying on the Supreme Court to implement much of its agenda.  Biden and the Democrats are not simply trying to hold onto power, but to save US politics as we have known them--and so far Biden has been less successful than either Clinton or Obama in forging a real bond with the electorate. Meanwhile, long-term problems such as the status of immigrants and the cost of health care have only gotten worse.  Clinton warned in 1993 that health care already cost us 14 percent of our GDP and warned that by 2020 that figure might reach almost 20 percent.  He was exactly right: it cost 19.8 percent of GDP in that year. The trend towards greater inequality has continued almost unabated, and the influence of money over politics has grown.  With the Federal Reserve Board actively trying to bring about a recession to check inflation, Democratic prospects look dreadful in 2024.  A very large, intergenerational mass of voters clearly has little or no faith in our political establishment--and I can't say that I blame them.

Saturday, September 24, 2022

The New World Crisis

 The war in Ukraine and worldwide inflation and its consequences lead the news these days.  Many stories note that they are related.  The war has led to sanctions against Russia and a retaliatory cutoff of energy exports from there, sending energy prices skyrocketing.  Both, in my opinion, are the result of something much bigger: a crisis of globalization and its destructive effect on political authority around the world.  I cannot at this point see how we are going to get out of it.

As the world discovered in 1914, economic globalization relies on peace.  It encourages nations to depend on other continents for critical materials--food then, food and energy now.  When war comes those flows are disrupted.  When that happened in the First World War, both Germany and Japan eventually decided to try to create autarkic empires that would not be vulnerable to wars and world economic swings.  The United States led the coalition that defeated them and promoted globalization in the non-Communist world--but western governments continued to regulate trade and currencies effectively.  The deregulation of the world economy began in the 1970s with the end of the gold-exchange standard, and the gradual opening of Chinese markets and the fall of Soviet Communism spread the new system all over the world.  

Like the world of the 1920s, the world of the 2000s had become very financially interconnected.  In 2008, as in 1929, a credit crisis in the United States rapidly spread around the world.  China alone, as Adam Tooze pointed out in his book Crash--which I reviewed here--decided to fight the crisis with massive government spending on infrastructure, as both Germany and the US had done in the 1930s.  In the west, Tooze shown, central bankers, not elected leaders, determined the response, and transferred the burden of the crisis from the bankers who had caused it to ordinary citizens. The pandemic caused the next economic crisis, and massive infusions of capital from central banks appeared to be getting us out of this one.  But then inflation struck more than a year ago.

The inflation we are experiencing now replays the years of my young adulthood, from 1965 to 1982 or so,  when prices tripled.  They had already increased 50 percent by 1973 when the Arab oil embargo struck, and they had doubled by 1978 before further oil shocks raised inflation into double digits again.  Twice the US government took significant action to try to stop the inflation.  Richard Nixon in 1971 imposed wage and price controls, which cut inflation from nearly 6 percent in 1970 to a little over 3 percent for the next two years and insured his re-election.  After the oil shock in 1973 the US froze the price of domestic energy--a step which would have reduced inflation here very significantly today, since we are now energy self-sufficient.  Ronald Reagan and then-Fed chair Paul Volcker, however, finally broke the back of inflation with high interest rates leading to nearly 11 percent unemployment in 1982.  That was the formative experience for the Boom generation of economists and now the Fed is replaying that scenario.  Although many of them won't admit it, most orthodox economists really want a recession to control inflation, and I am not aware of a single western political leader who is trying to challenge that policy.  That threatens our political system.

Joe Biden's 60 Minutes interview last weekend illustrated what I mean.  Inflation is the nation's leading concern right now and will probably cost the Democrats control of the House, which will paralyze our politics and make it impossible for the Democrats to strengthen their case for re-election over the next two years.  Trump meanwhile is running neck and neck with Biden in national trial heats for the 2024 election--and I feel sure that Kamala Harris, who has never establish a real rapport with the American people, would poll significantly worse. Biden in the interview simply bragged that energy prices were down and that things could be worse.  He had nothing to offer, because the federal government has turned the care of the nation's economic health over to the Fed.  Rather than beating the Trump Republicans by taking big, active measures to restore economic health, the Democratic leadership seems to be counting on prosecutors in New York State and the Justice Department to bring Trump down.  They are in other words counting on the Deep State, which plays into Trump's hands politically.  That may succeed against Trump, but not against Ron DeSantis.

Similar political situations may be found in other parts of the world.  The German government courageously lined up with NATO to sanction Putin but has held back on giving Ukraine its best weapons, and now faces a major energy crisis because of cutoffs of Russian gas.  Inflation, as I have just learned, is much more serious in countries like Lebanon and Turkey and may threaten political collapse.  Prime Minister Truss of the UK has just announced a new round of high-income tax cuts, panicking financial markets there.  The most stable European country by far seems to be France, whose leader was just comfortably re-elected--partly, perhaps, because of de Gaulle's decision to use nuclear power to make France largely energy independent.  

A friend of mine, a scholar of China, has just informed me of a further breakdown of globalization.  Frightened by the crisis over Taiwan, she says, many foreign companies are pulling out of China so has not to be badly hurt by western sanctions against China if an attack on Taiwan occurs.  It seems clear, as Robert Skidelsky argued in his book Money and Government, which I also reviewed here--that western countries should try to become self-sufficient in more key products, or at least make sure that they buy them from friendly states.  But are governments actually strong enough  nowadays to make those changes?  They were from about 1870 until the late twentieth century, when democracy was a relatively new idea and governments had to mobilize resources to face serious foreign threats. They may not be now.  We don't know what the consequences will be.

Friday, September 16, 2022

The March of History

 Last week the New York Times published a fine story about Iraq today.  The George W. Bush administration was gearing up for the Iraq War 20 years ago, Obama pulled out of Iraq at the Iraqi government's request in 2011.  American troops went back after ISIS took over much of the country in 2014, and by 2017 ISIS had lost almost all its Iraqi territory.  ISIS had taken advantage of the long-standing antipathy between the Sunni minority, which had run Iraq under Saddam Hussein, and the newly impowered Shi'ite majority--much of it allied with Iran--which has ruled the central government since the American invasion.  ISIS's defeat, as Dexter Filkins of the New Yorker has shown, led to horrifying Shi'ite reprisals in the cities in had ruled, which will ensure that the bitter hatred between the two sects endures. The new story deals with the Shi'ite led portion of the country, which it describes as a failed state.  Various Shi'ite militias divide authority, struggle for power among themselves, and collect protection money from virtually every enterprise, great and small, in the country.  Iraq is again generating important oil revenues but the government has never managed to use them to benefit the mass of the people, many of whom lack reliable energy and water.  A well-informed foreign observer says that Iraq has never been a functioning state and that no prime minister has controlled the security forces or the borders. Various regional powers are competing for influence within Iraq but the United States government appears to have washed its hands of the country it shattered beyond repair.

The Iraq War was the third great turning point in the great crisis of the last 22 years or so. The first was the 2000 election, handed to George W. Bush by a Republican Supreme Court majority that kept the state of Florida from making sure of who had actually won.  The second, of course, was 9/11.  Ten years before that, when the Cold War came to an end and the Soviet Union collapsed, United States foreign policy had already entered a new phase. A recent article--"Introducing the Military Intervention Project: A New Dataset on US Military Interventions, 1776–2019," has shown that American military interventions abroad became significantly more common after the Cold War was over.  The authors do not systematically to explain this, but it seems clear to me that from George H. W. Bush onward presidents have assumed that without a peer competitor or a challenge to their leadership of the developed world, Republican and Democratic presidents assumed that they could use the military to secure any result they wanted anywhere in the world.  The Bush II administration assumed that they could turn Iraq into a free-market pro-American neoconservative paradise within a couple of years at most.  Like good Leninists, they trusted to history to achieve their goals and felt entitled to give history a bit of a push.  They fabricated a case based on non-existent weapons of mass destruction and links between Saddam Hussein and Al Queda to get Congress's approval for war--in which every major Democratic leader except the venerable Robert Byrd, who remembered the Tonkin Gulf, to go along.  After the occupation they destroyed the whole machinery of the previous state--something that US officials had not done in Germany or Japan after 1945--without any idea of what would come after.  Chaos resulted, and it continued to this day.  Iran was one of the big winners, extending new influence into Iraq.  That in turn triggered a bitter Cold War between Iran and Saudi Arabia that is being played out in civil war in Yemen, and that may lead to both countries acquiring nuclear weapons.  And the Obama administration pursued the same policy in Libya and Syria, with two kinds of disastrous results. 

The tone for the last thirty years was set, in fact, by the first President Bush, in the wake of the collapse of Communism and the first Gulf War.  "The triumph of democratic ideas in Eastern Europe and Latin America and the continuing struggle for freedom elsewhere all around the world all confirm the wisdom of our nation's founders,” he said in a State of the Union address on January 29, 1991, in the midst of the Gulf War. “Tonight, we work to achieve another victory, a victory over tyranny and savage aggression.” “Yes,” he continued, “the United States bears a major share of leadership in this effort. Among the nations of the world, only the United States of America has both the moral standing and the means to back it up. We're the only nation on this Earth that could assemble the forces of peace."  On March 6, he hailed the advent of a new world “in which freedom and respect for human rights find a home among all nations. The Gulf war put this new world to its first test. And my fellow Americans, we passed that test."

I don't think that our feelings of omnipotence are gone yet.  I certainly support everything we are doing now for Ukraine--indeed, as some readers will remember, I would have supported much stronger action once the war began.  Yet I don't see any serious thinking in our government about how we are going to live with China or Russia, when neither government shares our values or our vision for the future.  The post-9/11 resolution authorizing the executive to act anywhere in the world to pursue the war on terror is still in effect and we are still applying it in various ways on several continents.  The American people have largely lost interest in events abroad, but our foreign policy establishment seems as ambitious as ever.

Sunday, September 11, 2022

The Revolt Against Modernity

 This has been a good week for the New York Times.  Yesterday I wrote most of a post about the legacy of the Iraq war, prompted by an excellent story there about the chaotic situation in Iraq today, which has not had an effective state since the fall of Saddam Hussein.  Today, however, I have been diverted by another long piece of investigative reporting that appeared this morning: a look at the New York area's Hasidic schools, which educate about 50,000 young orthodox Jewish boys and a lesser number of girls (for which the story does not give any figure.  It turns out that most of the children in in these schools--particularly the boys--are receiving almost no real education.  In some of them not a single student has been able to pass state standardized tests in reading and math.  Many give all their instruction in Yiddish, and do little or nothing to help their students learn English--much less history or science.  The instruction deals mostly with the Talmud and other religious topics.  Corporal punishment is very frequent.  As a result, thousands of kids graduate from these schools without marketable skills and immediately fall into poverty.  Meanwhile, the Hasids have used their political power to secure considerable financial assistance for the schools from both the state and federal governments, and have successfully blocked serious investigations of their performance.

I was reminded of the talk I heard last May at the conference I participated in by the black scholar Shelby Steele, an almost exact contemporary of mine who was one of the first and most severe critics of victimhood culture among black Americans.  Now available on youtube, that talk argued that when the great civil rights acts gave equal rights to black Americans in the mid-1960s, they created a situation  that was too frightening for some black Americans to cope with.  They now had to compete on an equal footing with everyone else, with no excuse for failure, and some preferred to argue that the system was still rigged against them.   After the talk I introduced myself to Professor Steele and tried to extend his argument.  Modern life, I argued, in which every one of us has to prove themselves in a free labor market, is terrifying for many people of all backgrounds, and many of them would gladly seize upon a psychological escape hatch to avoid the competition.  He agreed with me.

Both the Hasids running Yiddish schools and the critical race theory acolytes railing against standardized tests, middle-class work habits, and the idea of meritocracy as racist constructs, it seems to me, are revolting against the modern world.  So are some evangelical Christians who want to make their religion the foundation of our educational system and our law.  So are MAGA Republicans who will not accept the clear results of elections even if certified by other Republicans.  And so are the majority of academics in the humanities, such as the ones who descended upon President Sweet of the AHA a few weeks ago and compelled him to write a letter of self-criticism confessing the sins of objectivity and disregarding their feelings.  In place of rationalism and fair competition, they want tribalism and redistribution of resources based on various forms of superstition, both ancient and modern.  And they are well-organized and powerful within many institutions and within both political parties.

The story about the Hasids raises interesting questions about the history of American Judaism.  The battle between tradition and modernity took place within many immigrant families a century ago, including my own father's.  His father became for a time a successful American businessman and encouraged his younger children to go to college, while his mother was a staunch traditionalist who had never wanted to leave Ukraine for the United States and tried to force his father to return there.  Modernity triumphed among American Jews in the mid-century period, but traditionalism has had something of a comeback.  The authors of the Times story are Eliza Shapiro and Brian M. Rosenthal, and Jonah Markowitz took the photographs.  They evidently are among the great majority of American Jews who do not regret the transition to modernity, and I commend them for exposing Jewish attempts to subvert it.  They are counterparts of Shelby Steele, my friend the economist Glenn Loury, and young podcaster Coleman Hughes, black Americans who reject the black revolt against modernity.  The future of the United States depends on men and women of all backgrounds like all of these, whose first loyalty is to impartial principles. 

Modernity unfortunately has come under effective attack because it has itself gone off the track during the last half-century.   Modernity can be cruel and helpless. A meritocratic educational system reveals that a small minority of young people are much smarter than anyone else.  The establishment, I think, cannot sell modernity to the great mass of the people if the rewards for that small minority--and the hardships of those who do not belong to it--are too great.  That is the situation today, when our whole elite educational system seems designed to identify our smartest young people and funnel them into careers on Wall Street and where CEOs make hundreds of times as much money as their workers.   Franklin Roosevelt brilliantly focused on the plight of the average American and did a great deal to improve it.  Since Ronald Reagan we have left the average American behind.  Our future depends not only on better ideas, but on better policies.  Only they can preserve our modern heritage against increasingly widespread attacks. 


Saturday, September 03, 2022

The Last Great GI

Early last week I had one of life's great recurring experiences when I spied a book on the library shelf that I didn't know about and knew I had to read. It was The Making of a Justice, the autobiography of Justice John Paul Stevens, who served on the Supreme Court from 1975 to 2010 and died three years ago at the age of 99.  He had a classic GI generation life--superbly educated at little cost, a code-breaker during the Second World War, and a successful attorney in his home town of Chicago.   He does not seem to have been very active in politics, but he knew then-Senator Charles Percy fairly well, and Percy in 1970 secured Stevens's appointment as a federal district judge. Five years later, that very underrated president Gerald Ford chose Stevens for the Supreme Court.  He served with eighteen different justices, including three chiefs, over the next 35 years.  

The bulk of the book is a term-by-term, case-by-case account of Stevens' years on the court.  Condensing a lot of legal history into a small space, he is occasionally too abrupt, and there were times when I could not figure out exactly what the case under discussion was about.  He is unfailingly polite towards all his colleagues, referring to them without exception by their first names, including "Tony" for Anthony Kennedy and "Nino" for Antonin Scalia.  This does not however conceal the major historical theme of the book:  the court's steady rightward movement on various fronts during his tenure, marked by a steady erosion of defendants' rights, a narrowing of the government's power to regulate corporate behavior, and some very strange decisions involving the scope of federal power.  And last but hardly least, Scalia saves his most detailed discussions for two 5-4 decisions which can only be described as nakedly partisan: Bush v. Gore, which awarded George W. Bush the presidency in 2000 without finding out who had really carried the critical state of Florida; District of Columbia vs. Heller, in which the majority threw out more than two centuries of legal and legislative precedent to create an absolute individual right to bear arms--a more drastic extension of judicial power, in my opinion, than Roe v. Wade, and one handed down with a 5-4 majority instead of a 7-2 one.  Citizens United vs. F.C.C., which effectively eliminated limits on corporate contributions to campaigns, is a third such decision. 

I came away from the book without much respect for the leaders of the conservative bloc during Stevens' tenure, including Scalia, Chief Justice Rehnquist, and Clarence Thomas.  In particular, the idea that these men--especially Scalia--were genuine "originalists" devoted to determining what the framers originally had in mind simply does not hold up under scrutiny.  A lot of liberals nowadays are comfortable with that characterization because they themselves feel that the founders' opinions came from another age and don't deserve much respect, but in fact, on many issues of great current interest--such as gun control and, often, economic regulation--the founders held views very different from those of today's conservatives.  To give one of Stevens's favorite examples, Justice Rehnquist took the lead in turning a rather fanciful interpretation of the 11th amendment to the Constitution into law.  That amendment, a model of brevity, reads in full: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."  Rehnquist decided that that amendment confers a kind of "sovereign immunity" upon the states that forbids the federal government from, among other things, requiring states to observe federal wages and hours laws.  

Stevens's account of numerous death penalty cases also depressed me.  He himself came to oppose the death penalty on principle because the risk of executing an innocent person is simply too great--as DNA evidence has made indisputably clear.  I personally oppose it on principle as well, simply because it is a barbaric act--although, like him, I think that life imprisonment without parallel is an essential substitute. (See inter alia, Sirhan, Sirhan.)  Conservative court majorities however have consistently tried to remove any obstacles to the application of the death penalty.  In a case that did not involve the death penalty, they denied a convicted man's request to do a DNA test that might have proven his innocence of a crime of which he had been convicted.  Many cases involving lesser punishments also reach the court under the 8th amendment's prohibition of "cruel and unusual punishments."  These, alas, are particularly frustrating to citizens like myself who believe that courts should not make law, because there is no way to decide them without the justices using their own definition of "cruel and unusual" and, at times, substituting it for that of state authorities.  I did think that Stevens made an excellent point in arguing repeatedly that prosecutors should not be able to use "victim impact statements" made after a jury has convicted a defendant to influence the length of their sentence pronounced by the judge. Any evidence that can increase a person's sentence, he argued, needs to be tested by the adversary process and submitted to the jury.  Eventually Stevens began losing that fight as the court moved rightward. 

Stevens and some of his conservative colleagues also  argued about the proper use of history--especially legislative history.  Confronted with the question of what a statue really means, Stevens and many other judges look to legislative debates to understand better what the legislators had in mind. Scalia on the other hand argues that they should rely purely on the text of the law in question--which can easily become an excuse for relying on their own view of what it should mean.  

Bush v. Gore and the Heller cases get the most detailed treatment of any in the book because they disturbed Stevens the most.  Regarding the first, Stevens explains that when the Florida dispute over possible recounts to determine the actual winner of an incredibly close election, he and his clerks did not believe that the Supreme Court would ever become involved.  The case involved a dispute over state procedures and state law, and numerous cases at all levels had affirmed that thorough recounts were the proper means of resolving disputes over close elections.   The conservative majority led by Chief Justice Rehnquist did not tip its hand until after the Florida Supreme Court demanded a recount in certain counties, and the 5-4 majority immediately granted a request for a stay and agreed to hear the case. They then fashioned a rather spurious reason for stopping the recount:  that different counties might impose different standards of what constituted a valid ballot, thereby denying Floridians the equal protection of the law.  Stevens appears to note that the effects of different standards would almost certainly be random, and another dissenting justice argued that that problem could have been turned over to the Florida Supreme Court.  The majority, which had presumably been bewailing the nation under the rule of Bill Clinton for eight years, refused to let anything get in the way of Bush's accession.

I wrote my own analysis of Scalia's opinion in D. C. vs. Heller in 2008 when he handed it down, and I think it holds up pretty well. Stevens's dissent emphasized that the Supreme Court in 1939 in United States vs. Miller, had upheld a law banning the possession of a sawed-off shotgun because such a weapon would be of no use in a militia.  A footnote to a 1980 opinion had restated that principle. His fellow dissenter Steven Breyer also pointed out that major cities in colonial times had strict legal regulations against the use or possession of particular firearms within their limits, as did many states subsequently.  Stevens also argues in his book that the Court should never have overruled these earlier precedents without giving some consideration to the obviously disastrous effect that their decision would have in real life.

As for Citizens United vs. Federal Elections Commission, it figures in the book as one of Stevens's last dissents, because speech problems he encountered while reading his opinion in court convinced him that he had had a very small stroke and needed to retire from it.  There two, however, a 5-4 majority threw out provisions of at least three venerable pieces of legislation: The Tillman Act of 1907 banning corporate contributions to campaigns, the Taft-Hartley Act of 1947, and the Federal Election Campaign Act of 1971.  It is not going too far, I think,. to say that most recent Republican nominees for the Supreme Court share the view that the entire first two-thirds of the 20th century, including the Progressive Era, and New Deal, and the Great Society, were an unfortunate detour from the true path of American life whose major achievements have to be undone.  That seems to be true to some degree at least of Roberts, Alito, Gorsuch, Kavanaugh, and Barrett, as well as of Clarence Thomas.  By 1975 the principles of that era were sufficiently mainstream that even a Republican president like Gerald Ford could nominate a prospective justice who evidently shared them, just as Richard Nixon, perhaps unwittingly, had nominated Harry Blackmun, and George H. W. Bush later nominated David Souter. Stevens did not in his book make the point that my late friend James MacGregor Burns argued very convincingly in his last book, Packing the Court. The Supreme Court for most of its history has used its extraordinary power to protect property and the status quo, and the Rehnquist and Roberts courts have simply returned to that tradition, taking advantage of the new judicial activism that arose under the Warren Court for their own purposes.  Our best hope for change would be a restoration of the legislative authority of Congress and state legislatures--who now face the task of securing abortion rights.