The Washington Post - USA (2022-05-24)

TUESDAY, MAY 24 , 2022. THE WASHINGTON POST EZ RE A23

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oe v. Wade has been so central to U.S. judicial politics for so many decades that it is hard to imagine what issue or issues would domi- nate without it. If the Supreme Court votes to withdraw the federal courts from abortion policy battles, as a leaked opinion by Justice Samuel A. Alito Jr., sug- gests, the conservative legal movement will have achieved its most high-profile objective — but lost its political raison d’etre. So where would the movement set its sights next? Reversing rights to contra- ception or same-sex marriage, as some fear? That’s highly unlikely, as Yale Law School’s Akhil Amar has cogently ex- plained. The court’s controversial abortion precedents are uniquely vulnerable to constitutional attack. Most justices have no interest in pressing against a gay-rights consensus that is increasingly deep and broad. And even if they were interested, the legal opportunities would be few and far between. While the commentariat was fixated on this red herring, conservative appellate judges from the U.S. Court of Appeals for the 5th Circuit (which covers Texas, Mis- sissippi and Louisiana) on Wednesday issued a ruling far more likely to define the next generation of constitutional con- flict. The decision in Jarkesy v. Securities and Exchange Commission wasn’t about a culture-war dispute, but the structure of American government itself — and it reflected the conservative legal convic- tion that a runaway administrative state is a leading threat to American democratic values. The 5th Circuit’s muscular ruling, aris- ing from a securities fraud case, signifi- cantly limits the prerogatives of the SEC. Until now, the SEC could accuse people or companies of financial wrongdoing and determine their responsibility in an internal “administrative proceeding” instead of through a trial in the judicial branch. These proceedings are run by administrative law judges — civil servants who work for the SEC — and the accused do not have the benefit of a jury hearing the case. The majority of the three-judge 5th Cir- cuit panel blasted this process from mul- tiple directions. It found, first, that those accused in such SEC fraud actions have the constitutional right to a jury trial. Second, that Congress had unconstitu- tionally granted the SEC, an executive- branch agency, “legislative” power. And third, that administrative law judges are too difficult for the president to remove. Each of those holdings has a complicat- ed legal basis that may or may not be upheld by the Supreme Court. But togeth- er they send a clear constitutional message, which could be applied to agencies beyond the SEC: that executive-branch bureaucracies in their current form are distorting key features of self- g overnment, including democratic accountability, the primacy of Congress and the right to trial by jury. The Constitution’s most important de- vice for protecting liberty was to divide the federal government’s powers between legislative, executive and judicial branches. But conservative legal scholars have argued that bodies such as the SEC (and its many alphabet-soup siblings) bring all those powers under the aegis of one agency. That erodes the system of checks and balances the Framers hoped would emerge from their creation. The 5th Circuit opinion argued that “accountability evaporates if a person or entity other than Congress exercises legislative power.” It cites a 2019 case, Gundy v. United States, in which the Supreme Court came close to imposing stricter limits on Congress’s ability to delegate legislative powers to executive officials. (An alarmed Justice Elena Kagan warned that such policing of the boundaries between the branches could render “most of Government... unconstitutional.”) The Supreme Court will be sent many more appeals in cases aimed at constrain- ing the federal bureaucracy in the coming years. Expect this to be the conservative legal movement’s next frontier. It wants to force Congress to take responsibility for legislative decisions, rather than pass- ing the buck to unelected civil servants. Progressives have recently prioritized “structural reform” to reinvigorate Amer- ican democracy. By this, they often mean the liberalization of voting rules, the addi- tion of states to the union, the elimination of the electoral college, the prohibition of gerrymandering and even the expansion of the Supreme Court. This is intended to make the U.S. government more respon- sive to majorities, but the countervailing power of unelected bureaucracies to work their will with minimal democratic oversight is rarely addressed. Conservatives have a different view of “structural reform.” They’re less concerned with expanding democracy in the abstract and more concerned with struc- turing it in such a way that government power can be constrained and constitutional rights durably protected. That puts unaccountable administrative agencies in the crosshairs. The overturning of Roe wouldn’t signal the start of a radical rights rollback by the Supreme Court’s conservative majority. Instead of the culture wars of the 20th century, the court after 2022 might increasingly be defined by timeless de- bates about how a liberal democracy should be structured.

JASON WILLICK

What might

conservative

legal minds

go after next?

I

n nearly 300 pages, a third-party investigator has produced the W arren Commission report, the 9/11 Commission report, of South- ern Baptist Christianity. And the scale of malfeasance is truly shocking. At issue is sexual predation by South- ern Baptist pastors and the further abuse of victims by indifferent and hostile church officials. According to the “Report of the Independent Investiga- tion,” credible accusations of sexual abuse that came to Southern Baptist leaders were routinely ignored to avoid legal liability or were referred back to unprepared local congregations. Survivors’ calls and emails, the report asserts, were “met, time and time again, with resistance, stonewalling, and even outright hostility.” When victims organized to draw attention to their suffer- ing, some church officials treated them as instruments of Satan, intent on distracting the church from its real mission of evangelism. The report depicts the abuses in Technicolor detail. Consider a meeting between one survivor, Christa Brown, and the Southern Baptist Convention’s bylaws work group. “Some opposed her even being allowed to speak,” the report states, and an Executive Committee member “turned his back to her during her speech and another chortled.” Is it possible to imagine a more cartoonish version of misogynist evil than a male ecclesiastical leader c hortling in response to an abused woman’s story? The main responses of the SBC, described in the report, have been to minimize allegations and undermine victims. Some Executive Committee members have referred to survivors as “Potiphar’s wife” — a biblical character who makes a false accusation of rape. In 2007, Frank Page, the SBC’s president at the time, wrote: “Please be aware that there are groups that are nothing more than opportunistic persons who are seeking to raise opportunities for personal gain.” In a 2008 email, Paige Patterson, a former SBC president who at the time served as president of the Southwestern Baptist Theological Semi- nary, referred to one survivors’ group as “just as reprehensible as sex criminals.” In 2018, the report reminds us, “Dr. Pat- terson was fired by SWBTS after he was accused of telling a student not to report a rape in 2003 and, in 2015, of emailing his intention to meet with another student who had reported an assault, with no other officials present, so he could ‘break her down.’ ” This is not Christianity. It is a culture of brutal chauvinism that has grown up for generations around Christianity. When it comes to protecting abusers, the largest American Protestant denom- ination is in the same vile category as the Catholic Church. An utter failure to prioritize abused women and children is the largest crisis of institutional religion in the United States. The Southern Baptist Convention must have realized it was dealing with highly explosive information. For years, it denied keeping a list of abusers. That turned out to be a lie. By August 2018, staff at the Executive Committee had a file of 585 possible abusers. But the purpose of that internal list was institutional self-protection from lawsuits. There is a warning here for any organization — what might be called the irony of institutional identity. When the primary mission of an institution is to defend itself, it is at grave risk of losing itself. Self-serving moral compromis- es come easier and easier. The Nixon White House believed that saving the United States required saving its a dministration through increasingly bold criminality. The Catholic Church believed that its holy mission required the burial of grave crimes against the innocent. “Their main concern,” the report says of the SBC’s leaders, “was avoiding any potential liability for the SBC.” Consider that for a moment. Their main concern was not women and children who were violated by sexual predators. It was the limitation of their legal exposure. What does that say about the content and quality of their beliefs? There is also a warning here specifi- cally to Christian institutions. When pastors believe that the importance of their mission — reaching the lost, spreading the Gospel — somehow justi- fies the concealment of terrible crimes, they have crossed the line into heresy. The Christian message can never be advanced through strategic lies. Decep- tion is its magnetic opposite. Often these justifications of sin in the cause of salvation are not really attempts to protect an institution from harm; they are attempts to protect the elites who run an institution from exposure. Former SBC official Russell Moore calls the revelations in the report “evil and systemic.” Those who deny the possibility that evil can be systemic must read this damning document. Men who intimidate victims, cover up cruelty and blame survivors for their own abuse have shaped the values and ethos of a major Christian institution. This is much more than religious hypoc- risy. It is the sign of a church that has lost its first love.

MICHAEL GERSON

The SBC report

is a portrait

of brutal

misogyny

BY BEN CRUMP

M

ay 25 marks two years since George Floyd’s brutal death sparked an unprecedented worldwide outpouring of outrage and pledges for change. While White people watched the grueling 9 minutes and 29 seconds it took officers to slowly extinguish Floyd’s life and reacted with shock, Black people responded with fear. For us, Floyd’s death was a gut punch — a vivid realization that it could have been me or my husband or wife, my daughter or son, my cousin or uncle. It was deeply personal, because every Black American knows we share a common and constant vulnerability. That’s why Floyd’s dying words — “I can’t breathe” — spoke for us all. People of all races took to the streets to demand accountability, justice and reform. But most of all, Black people wanted security — the chance to exhale, to experience the serenity of knowing we would not continue to be targeted for harm based on the color of our skin. On anniversaries such as this, it’s hard not to ask: Have we seen progress? In the Floyd case, we witnessed convictions. Derek Chauvin was found guilty of second-degree unintentional murder, third-degree murder and s econd-degree manslaughter, and the other three officers on the scene were convicted of federal civil rights offens- es. Accountability. I will never forget when the Floyd family, after a grueling trial in which they watched George’s death over and over, heard the verdict read — “guilty, guilty, guilty” — and immediately re- ceived a call from President Biden. It was a moment of catharsis and hope that things could change.

What about justice? True justice is, of course, impossible. When the life of a person who is treasured by so many is wrongfully ended, nothing can make up for that loss. A civil action is the best remedy we have not only to provide a measure of justice to a grieving family but even more to serve as a costly deterrent to future bad behavior. The city of Minneapolis’s $27 mil- lion settlement with the Floyd family sent a message to police departments throughout the country that they will pay a high price for egregious behavior. In fact, they are paying. In an analysis published in March, The Post found that 25 police and sheriff’s departments had paid out more than $3 billion over the past 10 years for citizens wrongly injured or killed by the police. Nearly half that money went to resolving allegations involving officers who had repeated complaints or lawsuits against them for misconduct. Then there’s reform. More than 140 police oversight and reform bills passed at the state and local levels after Floyd’s death. But the sweeping, com- prehensive reform that would trans- form policing and reframe the rela- tionship between police departments and people of color stalled from a lack of political will. The George Floyd Justice in Policing Act passed in the House but died in the Senate. The consequence of this unfinished business is that Black people lack the final, most important measure of progress: security, the chance to exhale and simply live our lives. Last year was one of the deadliest on record for police violence, with the police killing an average of three Amer- icans a day. That truth takes a heavier- than-average toll on Black Americans. Police violence is a leading cause of death among young Black men, and

unarmed Black people are three times more likely to be shot by the police than are unarmed White people. That death toll has names: Andre Hill, armed only with a cellphone, fatally shot in Ohio. Amir Locke, shot to death in the execution of a no-knock warrant for which he was not the target. Patrick Lyoya, a Congolese refu- gee who died face down on the ground, shot in the back of the head by a Michigan officer. The list goes on. And on. This is the price of the unfinished business of police reform. In April, the Minnesota Department of Human Rights (MDHR) document- ed that the Minneapolis Police Depart- ment had a long-standing pattern of racial discrimination in its policing, with life-threatening consequences for the Black community. The study told us little we didn’t know — but it was groundbreaking in that someone had finally bothered to look. What would we find if we similarly looked at the other 18,000 police departments around the country? When Biden became president- elect, he said he’d have our backs. It’s time for him to show us. If reform isn’t possible at the federal level, he can push for it in the states. Press for the kind of reviews done by the MDHR. Create a national database of police misconduct. Tie federal funds to meaningful policy change. Impose national standards for police training so we aren’t left with racist extremists training the next generation of officers. Only with widespread police reform will Black Americans ever get to breathe.

The writer is a lawyer who specializes in civil rights and catastrophic personal injury cases.

It’s been two years and

Black people still can’t breathe

BEBETO MATTHEWS/ASSOCIATED PRESS People visit a memorial to George Floyd on May 31, 2020, six days after Floyd was killed by a Minneapolis police officer.

McLeod went on a shooting spree in Colorado; and Aidan Ingalls opened fire on the South Haven, Mich., pier using a gun decorated with swastikas. But look closer and some of those cases aren’t as clear-cut as they sound in the gloss. McLeod appears to have killed people he knew from the local tattoo community for possibly unrelated personal grievances. Ingalls’s two random victims were White. Drill down further into the data and you’ll find other cases are even less clearly political: prison gang members engaging in pedestrian criminal violence; white supremacists killing their wives; people with mental illness acting on elaborate delusions that sometimes include references to right-wing con- spiracy theories; people embroiled in criminal trials or child custody disputes who have become enamored of “sover- eign citizen” theories that tell them the state has no right to interfere. I’m not cherry-picking a few ambigu- ous outliers; I’m arguably describing the majority of the incidents in the ADL’s 2021 report. Every one of these killings is a horrific tragedy. But it’s not clear they all have much to do with politics, as the ADL itself acknowledges. “One of the most striking features of white supremacist murders is the large proportion of non-ideological killings to ideological killings,” the ADL wrote in its most recent report. “Over the past 10 years, only 86 of the 244 white supremacist killings (35%) were ideological murders.” One reason for this confusion is that all prison gangs tend to be organized along racial lines, for complex sociologi- cal reasons, yet only the White gangs are coded as white-supremacist groups rather than criminal organizations. To be clear, that’s because they officially en-

A

merica has a problem with right- wing political violence. You need only look at the footage of Jan. 6, 2021, to see that. Or white- s upremacist killings such as the recent shooting in Buffalo. Or misogynist kill- ers such as Elliot Rodger, who went on a rampage in Isla Vista, Calif., in 2014. But just how big a problem is it? Bigger than other kinds of political violence? You might think the answer is clearly yes, but the data often cited to support this conclusion don’t say what most people think. The aftermath of the Buffalo massacre saw a spate of articles describing the menace of right-wing extremists. The New York Times’s David Leonhardt c haracterizes it as “a violence problem that has no equivalent on the left.” You might even have glanced at the reports these articles often cite from the Anti- Defamation League. Over the past dec- ade, the ADL has counted about 450 murders committed by domestic political extremists, with 29 occurring just last year. It reports the overwhelm- ing majority were committed by people with ties to various right-wing groups. Seems straightforward, right? Well, yes — until you look at the underlying data. The people citing these reports write about them as if they primarily document political violence — or “domestic terrorism,” as my own colleagues put it. That is to say, attacks that are motivated by someone’s political affiliation and at least tangentially related to some political goals. Certainly such attacks do happen, and far too often. Just in the past year, Nathan Allen, allegedly a white supremacist, killed two Black people in Massa- chusetts before being shot by police officers; “manosphere” devotee Lyndon

dorse vicious white-supremacist ideol- ogy. But many criminals with no particu- lar racial animus join them for protection and go on to commit further crimes that are not really about race or even gang membership. Should we really code those crimes as being “associated” with right-wing extremism? Moreover, those gangs produce easy visual signifiers, such as tattoos, often along with detailed prison records, so authorities are probably more likely to pick up such associations than, say, a fan of Islamic State videos who also hap- pened to shoot his girlfriend. The ADL itself acknowledges that this effect could be skewing its data. The media might then magnify that reporting bias. After all those reports on the threat of right-wing violence, any new case with a tenuous link to the alt-right or the Aryan Brotherhood seems like part of a trend meriting wall-to-wall coverage. Mean- while, a Black man driving into a parade after making anti-White remarks on Facebook is seen as a sick individual. There’s some danger that this becomes the policy equivalent of a self-licking ice cream cone: Media primed by n ongovernmental-organization reports play up even glancing connections to racist or militia groups, which in turn guarantees that the next such report will feature a disproportionate share of cases coded as “right-wing violence.” That’s not to say that right-wing violence isn’t a disproportionate threat compared with other ideologies. Indeed, given that Whites are the majority of American adults, and a lot of noxious ideologies are Whites-only, it wouldn’t be at all surprising. But saying that a thing is plausible is not the same as proving it is true — not even if someone hands you a number that seems to confirm all your worst suspicions.

MEGAN MCARDLE

Beware the data on U.S. right-wing violence

The Washington Post - USA (2022-05-24)

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