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January 12, 2020 MEMBER OP-ED

New Year, New Challenges, New Hope

Wendy Mariner, 2019-20 Section Chair

It is “a bewildering time to be an American,” Jay Ruttenberg noted on Christmas Eve 2019. The stock market continues to climb, defying historical trends, as does the federal deficit. Yet, inequality in the distribution of wealth is as dramatic as in the 1920’s preceding the stock market crash and the Great Depression. We live in a time of transition, with economic, cultural, and technological disruptions – conditions that can give rise to what Stanley Cohen called moral panic. The internet both informs and manipulates public opinion. Some sources reveal inequities. Others urge forbearance and faith in leadership. Still others say no one can be believed. This is fertile ground for political polarization.

In Uncivil Agreement: How Politics Became Our Identity, Lilliana Mason argues that identity politics has transmogrified into political identity, with one’s political party preference subsuming and superseding all other personal or community identities, whether race, color, religion, ethnicity, gender, occupation, or socioeconomic class. The power of political identity can lead to “social sorting,” distancing people from those with different political preferences, despite other social ties. There are historical precedents for political extremism. If today’s seems especially threatening to the rule of law, we can take heart knowing that the country has survived – so far. There are steps we can take to resist the centrifugal forces of politics and preserve the rule of law.

Jon Meacham highlights critical points in United States history when ideological divisions threatened – and failed – to destroy the country’s constitutional foundations, in The Soul of America. Extremists propagated myths about America for Americans. By Americans they meant white people of northern European descent, ignoring the Native Americans from whom the colonists and their descendants took the land, as well as immigrants from southern and eastern Europe, South and Central America, and Asia, and especially descendants of enslaved peoples. Extremists have also fought to exclude people with religious faiths other than Protestant Christianity from the definition of Americans and the rights they have by birth or naturalization. Adherents of the former Confederacy’s “Lost Cause” mythology, the Ku Klux Klan, Nazism, and Joseph McCarthy’s anti-communist crusade, conspiracy theorists, and antagonists of Judaism, Catholicism, and women’s right to vote, harnessed fear of the “other” to incite political opposition to fundamental American principles.   

Time and again, fearmongering polarized politics, leaving us susceptible to autocratic rule. And yet, the country endures. If it feels like we face another such challenge today, we should take heart that, in the past, “the better angels of our nature” (Abraham Lincoln’s phrase from his first inaugural address) prevailed – if not to achieve equal opportunity for all, then at least enough to preserve the republic’s basic institutions. We have rejected fear – of people of color, immigrants, the poor, women, LGBTQ+ communities – and acted with hope for a more perfect union. As we begin the New Year, let us pause to consider some current challenges to the country’s founding ideals and how we can meet them with hope and renewed action.

Voting. Since the Supreme Court’s 2013 decision in Shelby County v. Holder, states have stepped up efforts to keep disfavored citizens from voting. The House of Representatives voted to amend the Voting Rights Act to prevent laws and practices that deny any citizen the right to vote, and we hope the Senate will follow suit. Meanwhile, civic organizations are finding ways to register and protect voters. More states have granted voting rights to people formerly incarcerated, while others are trying, despite limited resources, to secure their voting machines against Russian manipulation.

Poverty. The federal administration is issuing regulations to restrict eligibility and benefits for programs that assist low-income families, thereby increasing the population of people living in poverty. Many states, cities, and counties, however, are increasing the minimum wage. While affordable housing remains scarce, courts have protected the right of homeless people to sleep in public areas in the absence of shelter space.

Access to Health Care. In Texas v. United States, 2019 U.S. App. LEXIS 37567 (2019), the Fifth Circuit Court of Appeals found the Affordable Care Act’s individual mandate unconstitutional and remanded to the district court to decide whether only some or all of the Act’s other provisions should also be struck down. ACA defenders now seek expedited U.S. Supreme Court review. Other federal courts temporarily halted enforcement of HHS §1115 waivers that reduce enrollment in Medicaid. In March 2020, the Supreme Court will hear arguments in June Medical Services v. Gee, concerning Louisiana abortion restrictions virtually identical to those found unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016.

Environment. An existential threat to humanity is climate change, displaying itself in rising global temperatures, melting glaciers, intensifying storms, and wildfires in California and Australia. Obama-era policies intended to reduce carbon emissions are being reversed by actions like withdrawing from the Paris Agreement (effective Nov. 4, 2020). However, public demands to confront the danger are also rising, spurred by our youth, most visibly Greta Thunberg.

Criminal Justice. In 2008, the prison population in United States peaked, with almost 25% of the world’s 9.8 million prisoners. Since then, there has been growing support for reforms. Illinois’ Governor issued pardons to more than 11,000 people convicted of low-level marijuana crimes. New York ended bail requirements for misdemeanors and non-violent felonies. As deaths of despair reduce life expectancy, the opioid epidemic is seen increasingly as a medical problem, rather than a criminal justice or racial problem (as it was when crack cocaine devastated communities in the early 1990’s).  

These are only a few examples of the contradictions that lie at the heart of America. (Think of immigration, education, gun violence, the #MeToo movement, and Black Lives Matter.) While some preach fear, public interest lawyers and independent judges offer hope. History shows that social movements can overcome fearmongering. In his first inaugural address, President Bill Clinton said, “There is nothing wrong with America that cannot be cured by what is right with America.” As more people recognize what is right and just, the closer we get to America’s promise as a land of opportunity for everyone, regardless of color, creed, or class. It may take more time and effort than we would want. So remember, the sooner we join the movement for civil rights and social justice, the sooner the promise will be fulfilled.

IN CASE YOU MISSED ITIncoming Chair Wendy K. Mariner Welcomes a New Bar Year