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People voted blue in the midterms because they trust the Democratic Party to preserve democracy. From accessibility for disabled voters to protecting the vote-by-mail process, Democrats should step up and prioritize voting rights wherever they can.
Gadd called city officials and let them know about the issue, expecting it would be fixed by the general election. It was not. “I was once again forced to vote with ten to eighteen people standing around me waiting for their turn at a private voting booth,” Gadd told Jacobin. “Someone I work with was able to read my ballot.”
In 2016, the US Government Accountability Office looked at a sampling of polling places around the country and found that an astonishing 60 percent featured one or more impediments to people with disabilities. The same study found that 65 percent had an accessible voting station, but it did not meet the requirements for casting a private vote.
This midterm cycle, Democrats stood tall in the face of the “red wave” that never was. Abortion rights played a big role in the party’s relative success, but another major motivating factor for voters seems to have been the preservation of democracy itself: every single election-denying Republican candidate (i.e. those who believe Biden’s victory over Trump was illegitimate) who ran in a swing state lost their race. Democrats can now claim a mandate for protecting voting rights, an agenda that can and should include accessibility at the polls.
Americans with Disabilities Act (ADA) violations at polling places may seem like a minor issue when it comes to voter access, especially with absentee ballots expanding in states across the country. But bear in mind that universal absentee voting is relatively new for most states, and Republican-controlled legislatures have pushed hard to restrict mail-in ballots and routinely attempt to throw out votes on flimsy pretenses. And these issues aren’t just limited to the red states: even in blue Massachusetts, the fear that a mail-in ballot might not be counted motivated Amanda Gadd to vote in person. She told Jacobin:
I live in a small town and can see someone not bothering with the mail-in ballots for ease or wanted outcomes. Few would bother to notice or question it — same as with the handicapped-accessible voting booth. If I vote in person I have control of my vote all the way to the counting.”
With the governor’s office reverting to Democratic Party control again after eight years, it should be a simple matter for Massachusetts to ensure ADA compliance across the state. All the party has to do is prioritize it — and they should, both on principle and because, given voters’ feelings about preserving democracy, protecting voting rights is good politics.
Becoming the Party of Voting Rights
Beyond the specific concerns of disabled people, the United States’ voting rights situation is quite dire. Time magazine profiled seven voters who faced obstacles in casting their ballot during the midterms in Georgia, and their stories were indicative of the breadth of the issue. Some were eventually able to overcome their obstacles, like the college student who, because of a lack of public transportation, found herself three hours from her polling place. She was able to catch a ride with a friend. Others, like a forty-six-year-old woman on probation who under Georgia law is barred from voting until 2029, have no such work-around.
With Republicans winning back the House with a narrow margin, there is little hope for federal voting rights legislation in the next two years. However, Democrats can still make moves to protect voting rights at the federal level. Biden, for instance, can appoint two new members to the Postal Service Board of Governors when the terms of two Trump appointees expire in December. This would be the first step in getting rid of Postmaster General Louis DeJoy, the Trump-backed ex–logistics CEO who’s made it his mission to gut the US Postal Service and sabotage absentee voting. Bringing in a new head for the post office and restoring its capabilities is crucial for voters to trust mail-in ballots.
Democrats in blue states have no excuse not to prioritize expanding voter access. And while it will be an uphill battle in red and purple states, it’s not undoable. Democrats should take advantage of some of their state-level midterm wins to force the issue. In Arizona, for example, incoming Democratic secretary of state Adrian Fontes — who earned more votes than any Democrat in the state other than incumbent and returning senator Mark Kelly — will have control over elections. Fontes beat an election denier, giving him a clear mandate to protect the democratic process.
The 2022 midterms showed that election denialism is an albatross around the neck of the Republican Party. Democrats can use that leverage to expand voting rights where they can and by as much as they can. It must be a coordinated effort, with national resources directed to state parties and local organizations. With the explicit threat of the far right subverting democracy, there is an opportunity to get independents and maybe even a few Republicans on board with protecting and expanding voter access.
Amanda Gadd’s story shows that there is work to be done in blue states as well. Gadd eventually received an assurance from the town that her polling place will have a table available for private wheelchair-accessible voting by the next election. It took several slightly contentious emails for her to get that assurance, and in the process she learned that there is only one person in the secretary of state’s office charged with overseeing ADA compliance, which is not nearly enough to ensure every polling place meets requirements. While the state has made strides in disabled voter access, it’s been mostly focused on absentee balloting. The lack of oversight for in-person voting accessibility may seem like a minor problem, but it’s also an unnecessary one that’s easy to fix. Any party committed to voting rights would solve it immediately.
Democrats have been able to use the threat of Trump and Trumpism returning to power to raise massive amounts of money from their base. Instead of using that war chest on expensive ad buys and ineffective consulting agencies, they would be better served putting their resources into fighting for voting rights in red and purple states and making sure that blue states are doing everything they can to ensure every voter can cast a safe, private, and independent ballot.
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A vigil after the shooting at Club Q. (photo: Rachel Woolf/WP)
At least five people were killed and 18 more injured in a shooting at Club Q, an LGBTQ club in Colorado Springs, this weekend. It comes less than a week after a shooting at University of Virginia in Charlottesville left three dead.
Mass shootings — where four or more people, not including the shooter, are injured or killed — have averaged more than one per day so far this year. Not a single week in 2022 has passed without at least four mass shootings.
Mass shootings have been on the rise in recent years. In 2021, almost 700 such incidents occurred, a jump from the 610 in 2020 and 417 in 2019. Before that, incidents had not topped 400 annually since the Gun Violence Archive started tracking in 2014.
2022 is close behind the high reached last year when comparing the same time period.
The toll is immense. Mass shootings have killed 621 people and injured 2,524 more through November 19th.
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Halyna Zahorodnikh, 71, stands in her kitchen that, like much of her apartment, has sustained damage from nearby shelling. Plastic sheets now hang where the windows were. She is one of millions of Ukrainians facing a winter that's essentially being weaponized against them. (photo: Claire Harbage/NPR)
Halyna Zahorodnikh, who is 71, wears layers of fleece in the apartment to stay warm.
She is one of millions of Ukrainians facing a winter that's essentially being weaponized against them.
Russia's systematic and repeated attacks on Ukraine's energy and heating infrastructure — the latest of which involved the heaviest missile strikes in a nearly nine-month war — have led to regular power outages in some of the country's largest cities.
In smaller towns like Izium, where Zahorodnikh has lived all her life, electricity is intermittent and constantly threatened by the type of long-range missile and drone strikes that have become common over the last two months of Russia's war on Ukraine.
Following last week's widespread attacks, almost half the country's energy system has been disabled, Ukrainian Prime Minister Denys Shmyhal said at a meeting with the European Commission Friday. "Russia is trying to compensate for the losses on the battlefield with missile attacks on civilian critical infrastructure," he said.
Ukraine's energy ministry has been trying to repair damaged infrastructure as quickly as it can.
"Russia tries to destroy all of the energy supply chains. Generating facilities — especially thermal power plants — distribution systems and power lines," the energy ministry said in a written statement to NPR before the most recent attacks.
The attacks have left residents and businesses scrambling for gas-powered generators and firewood. Nonprofit aid organizations, the United Nations and Western allies have started to include winter clothing, thick blankets and heating equipment in shipments to the country.
"Should there be large-scale outages for long periods of time, we simply do not have the resources to provide people in need with the assistance they will need," says Marysia Zapasnik, the International Rescue Committee's Ukraine director. "The humanitarian situation will become much more dire than it is now."
The electrical heat lamp warming Zahorodnikh's living room was given to her by an aid organization. Donated blankets line her bed. She plans to stay for winter.
And if she loses power?
"I don't know," she says, with a stubborn smile. "Maybe I'll burn my books."
Russia targets Ukraine's ability to move energy
Russia has attacked Ukraine's heating and electrical infrastructure since the start of its nearly nine-month invasion.
As early as June, Ukraine's energy minister, German Galushchenko, told NPR that Russia was looking to weaponize the coming heating season with attacks on energy resources and facilities.
Many of Russia's early strikes, Galushchenko said, were aimed at power generating sources — thermal coal and gas plants. Russia also continues to occupy the largest nuclear power plant in Ukraine — and all of Europe — in the country's south. Ukraine gets roughly 60% of its energy from nuclear power stations.
As of late October, the energy ministry says, Russian attacks have damaged about 40% of the country's thermal generation. Ninety percent of its wind power and more than 40% percent of its solar energy sources were either under occupation or damaged.
Many of Russia's more recent attacks have targeted the distribution systems, says DTEK, Ukraine's largest private power generator.
"These actions cannot be called anything other than energy terrorism and a brutal attempt to create a humanitarian disaster right in the center of Europe," DTEK says in a statement.
Attacks on substations and transformers limit Ukraine's ability to move power around and also its ability to import energy from Europe. They're also harder targets to defend against long-range attacks, says Oleksandr Kharchenko, the director of the Energy Research Center in Kyiv.
"I believe that Ukraine has enough [electrical] generation capacity," says Kharchenko. "Generation capacity has been better defended from the start of this war. But substations — there are a lot of them. It's not possible to cover each of them by special air defense [systems]."
Ukraine races to repair its electrical grid
In a small village east of Kharkiv, where the sounds of artillery and tanks can still be heard like distant thunder, Mykhailo Voinov opens the metal door of a damaged electrical substation. A thumb-sized gash, from shrapnel, mars the door.
Voinov is an electrician who's been fixing damaged Ukrainian energy infrastructure.
"There's a lot of damage from shrapnel, but this one is the worst," he says, reaching into the substation and tapping on its main component, a ribbed cylinder-shaped transformer. It's empty, he points out. The oil from it drained through a hole from the shrapnel.
Fixing this one substation will cost thousands of dollars, Voinov says. Transformers, conductors and other components for electrical substations are in short supply. His team often has to wait weeks for equipment before they can make repairs, he says.
"Repair crews are working 24/7, without a day off, to minimize the length of emergency power outages," Ukraine's energy ministry says. Still, authorities are urging residents to conserve electricity, as much of the population prepares for a long winter with regular outages.
Voinov is among them. In a small village where his family owns a dacha, a summer cottage, power is expected to be out for months. Only a few residents, including Oleksandr Lysytskyi and his wife, Svitalana Maliarova, remain.
A crater from a Russian artillery shell that landed in their yard is filled with broken glass. They buried one of their dogs in another, Lysytskyi says.
Since Russian troops were driven out of the area in mid-September, Lysytskyi says, he's been trying to prepare his house for the coming winter. They're boarding up broken windows with plywood or covering them with plastic sheets provided by the United Nations.
A wood-fire boiler provides his home with heat. The wood, he says quietly, he's been collecting from the mine-riddled woods behind their house.
Lysytskyi and his family remained in this small village throughout Russia's occupation. They'll stay, he says, through the approaching winter.
Millions of Ukrainians are expected to turn to firewood to heat their homes
Wood-burning stoves and boilers, like the kind Lysytskyi is depending on, have been in high demand across Ukraine. They're now so hard to buy that territorial defense units have taken to creating stoves by welding sheets of metal, for soldiers who will spend the winter in front-line positions.
The increased reliance on firewood has raised concerns from some environmental groups in Ukraine. Deforestation of the country's rich woodlands was a concern even before Russia's full-scale invasion. Last year, Ukrainian President Volodymyr Zelenskyy launched a Green Country Project, aimed at reforesting parts of the country with a million trees.
Since Russia's invasion, Ukraine's environment ministry has sent warnings to the public, making it clear that unpermitted logging is punishable by fines.
The need to protect undamaged forests is paramount, says Ruslan Strilets, the environment minister. "Because of the trenches, the explosions and fires," he says. "One-third of Ukrainian woodland has been damaged by war."
Strilets believes illegal logging won't be a major issue for the country over the winter — in part because the government has expanded a program to provide civilians with firewood to meet increased demand.
The state-run program gives residents the opportunity to buy up to roughly 530 cubic feet of firewood for the upcoming heating season. The government has more than doubled the amount of wood available for purchase, Strilets says, in anticipation of the increased need.
There are logistical issues to overcome though. Civilians need to be able to afford the firewood — a problem with the increased cost of everyday goods, like food and medicine. There are also concerns about delivery — how firewood will be transported to hard-hit places like Izium.
Bridges, roads and railways have been damaged across Ukraine and many people aren't prepared to navigate the bureaucratic process of getting wood purchased and delivered, says a resident of Izium, in far northeastern Ukraine. He prefers not to give his name because he's been illegally collecting wood for neighbors.
The man, a writer before the war, has been organizing other men to supply residents of the heavily damaged town with firewood. He's been collecting it in a burnt and torn woodland that the Russians had been using, before being driven out, as an ammunition storage site west of town.
"These trees will be cut down," he says, standing among spent Russian artillery shells. "The government will hire people and pay for this, but so far they haven't decided what to do and we have the chance to cut this wood for people who need it, and take it to them."
The work is dangerous. Unexploded ordnance litters the ground. Jagged metal is buried in the soft dirt. A local official tells NPR it will take years to demine the woodland, where residents like the man logging used to collect mushrooms.
Asked if he's worried about being fined or stepping on an explosive, the logger laughs.
"I think freezing temperatures are scarier than forestry."
Rep. Alexandria Ocasio-Cortez (D-N.Y.) (photo: Getty Images/AFP)
"You have played a major role in elevating anti-LGBT+ hate rhetoric and anti-trans lies while... blocking even the most common sense gun safety laws," Rep. Alexandria Ocasio-Cortez tweeted
Ocasio-Cortez tweeted a response to the Republican congresswoman, writing, “You have played a major role in elevating anti-LGBT+ hate rhetoric and anti-trans lies while spending your time in Congress blocking even the most common sense gun safety laws.”
“You don’t get to ‘thoughts and prayers’ your way out of this,” she added. “Look inward and change.”
Not only is Boebert blindly pro-gun, she has also spread vicious, dangerous lies that LGBTQ+ people in the U.S. are “grooming” children. A report from the Center for Countering Digital Hate and the Human Rights Campaign found that Boebert was the third most influential Twitter account in the U.S. that spread the harmful and false “groomer narrative.” Her GOP colleague, Rep. Marjorie Taylor Greene, was ranked number one. Meanwhile, hate crimes against LGBTQ+ people have been rising in areas of the U.S. and internationally. Experts have been warning that increases in anti-LGBTQ hate speech online can be seen as calls to action for extremists and extremist groups.
Boebert campaigned on her love of guns and when she was first elected, she pledged in an ad that she would “carry my Glock to Congress.” Following the school shooting in Uvalde, Texas, as advocates called for stricter gun safety laws, Boebert posted on Twitter, saying, “You can’t legislate away evil.”
“Why even be in Congress if you don’t believe in doing your job?” Ocasio-Cortez responded to Boebert at the time. “Just quit and let someone who actually gives a damn do it instead of acting like a useless piece of furniture when babies are shot with AR-15s that we let teen boys impulse buy before they can legally have a beer.”
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Amy Coney Barrett. (photo: Damian Dovarganes/AP)
The US supreme court justice’s history with the People of Praise raises questions about her impartiality in upcoming case
The former members are part of a network of “survivors” of the controversial charismatic group who say Barrett’s “lifelong and continued” membership in the People of Praise make her too biased to fairly adjudicate an upcoming case that will decide whether private business owners have a right to decline services to potential clients based on their sexual orientation.
They point to Barrett’s former role on the board of Trinity Schools Inc, a private group of Christian schools that is affiliated with the People of Praise and, in effect, barred admission to children of same-sex parents from attending the school.
A faculty guide published in 2015, the year Barrett joined the board, said “blatant sexual immorality” – which the guide said included “homosexual acts” – had “no place in the culture of Trinity Schools”. The discriminatory policies were in place before and after Barrett joined.
The schools’ attitude, the former People of Praise members said, reflect the Christian group’s staunchly anti-gay beliefs and adherence to traditional family values, including – they say – expelling or ostracizing members of the People of Praise “community” who came out as gay later in life or their gay children.
“I don’t believe that someone in her position, who is a member of this group, could put those biases aside, especially in a decision like the one coming up,” said Maura Sullivan, a 46-year-old who was raised in the People of Praise community in South Bend, Indiana. Sullivan identifies as bisexual and recalls coming out to her parents, who were members of the People of Praise, when she was 19.
“They decided that I wasn’t allowed to be around my sister, who was 13 at the time, without them around, because I could ‘influence’ her in bad ways. Stuff like that. So I had a tenuous relationship with my family,” she said. “To be cut off from my family was the ultimate loss of community.” Sullivan and her parents, who are no longer members of the faith group, have since repaired their relationship, she said.
Questions about the People of Praise’s attitude toward LGBTQ+ members and their families, and Trinity Schools’ policies, have resurfaced because the supreme court will hear oral arguments on 5 December in the case of 303 Creative LLC v Elenis.
It centers on a Christian website developer, Lori Smith, who has claimed an anti-discrimination law in Colorado has violated her right to free speech over same-sex marriage, which she says goes against her religious faith. Smith has said the Colorado law has forced her to “create messages that go against my deeply held beliefs” since she cannot legally turn away gay couples seeking her website services.
Barrett said in her confirmation hearing that her personal religious beliefs would not interfere with her abilities to be an unbiased judge. Conservatives have also lashed out against any suggestion that her affiliation with a Christian sect could compromise her independence.
But some former members of the faith group say they see a big difference between judges who have faith and are religious, and Barrett’s affiliation with the People of Praise, a tight-knit community whose members agree to a lifelong covenant of loyalty to one another.
Like other charismatic Christian groups that were established in the 1970s, People of Praise members attend regular meetings, are encouraged to live communally, practice speaking in tongues and adhere to guidelines set by male leaders, or heads of a community.
“The People of Praise has deeply entrenched, anti-gay values that negatively affect the lives of real people, including vulnerable youth. These values show up in the everyday policies of the People of Praise and their schools. They are policies that are way outside the mainstream, and most Americans would be disturbed by them,” said Kevin Connolly, a former member of the People of Praise who is the brother of the group’s chief spokesperson. Connolly has previously made public remarks about physical abuse he suffered at the hands of his father.
Barrett has never publicly acknowledged her membership in the community since becoming a judge and did not disclose it during her 2020 confirmation. It was reported at the time that the People of Praise erased all mentions and photos of her from its website ahead of her meetings with lawmakers.
Tom Henry, a 24-year-old former student at a Trinity school who works as a psychiatric nurse, recalled incidents during his time at Trinity in which he was discouraged from being open about his sexuality.
In one case, he was told in art class that he could not draw a picture of Harvey Milk, the gay activist and San Francisco politician who was killed in 1978, because it was “too political”. In his service as a student ambassador, he also recalled approaching his director at the time, Jon Balsbaugh – who is now president of Trinity Schools – and asking him about an inquiry from a parent of a gay child.
“He said there was a policy, and it was basically a public stance that they don’t support gay marriage or people transitioning, and he blatantly said you just tell them that this would not be a good place for them,” Henry said. “I just remember being so shocked because he blatantly said it.”
Neither Balsbaugh nor the People of Praise responded to a request for comment.
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Supreme Court Justice Clarence Thomas speaks during a conference of The Federalist Society in Lake Buena Vista, Florida, on January 31, 2020. (photo: Stephen M. Dowell/Orlando Sentinel/Tribune News Service/Getty Images)
All they do is win, win, win, no matter what. So why are America’s most powerful lawyers so unhappy?
He’s also a very bad standup comedian.
On Thursday, Pryor gave the opening speech at the annual conference of the most powerful legal organization in the United States. But the bulk of the judge’s remarks to the Federalist Society was a Bill O’Reilly-style barrage of insult comedy, largely directed at left-leaning journalists who cover the federal judiciary. Sample joke: “No less an authority than [Slate’s Supreme Court reporter] Mark Joseph Stern — and really, is there less an authority?”
It’s hard to imagine an event that better symbolizes the mix of power and pathos that underlies the Federalist Society than Pryor’s foray into insult comedy. Here is this eminence of the legal profession — a lifetime appointee speaking to an organization whose members dominate the federal judiciary, and especially the nation’s highest Court. And yet he can’t help but obsess over a handful of powerless scribes who write disparagingly about his friends in the society.
Ideas that begin with the Federalist Society frequently become Supreme Court opinions in just a few years. In the past, the society’s annual gathering has foreshadowed the destruction of US gun laws; the strangulation of the federal administrative state; and, in one of its increasingly rare high-profile failures, the attempted death of Obamacare. The five most conservative Supreme Court justices, four of whom attended the society’s annual black-tie dinner this year, are all enthusiastic supporters of the Federalist Society. I try to attend the Federalist Society’s conference every year, largely so that I’ll know what Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch will say in their future judicial opinions.
Yet this year was different. Indeed, it often felt like two conferences, neither of which offered much insight into the kind of world the Federalist Society’s most powerful acolytes will build for us in the coming years.
The first conference was largely a retrospective, looking back upon the impressive array of victories the conservative legal movement chalked up in the Supreme Court’s last term. Panels celebrated the death of Roe v. Wade and the gaping hole the Federalist Society’s justices tore into the wall separating church and state. The first day of the conference included three different panels touting the so-called “major questions doctrine,” a judicially created doctrine that gives the Court and its current Republican-appointed majority a virtually limitless veto power over federal regulations that they do not like.
As several conference attendees told me, the fact that so much of the conference was backward-looking — cheering past victories rather than planning for new ones — is hardly a sign that the society’s power is diminished. After a round of generational victories, it’s normal to pause for a moment and regroup before beginning a new offensive. For the moment, however, the conference offered only the narrowest window into where the Supreme Court might go next.
The second conference-within-a-conference emphasized the conservative legal movement’s cultural grievances. All four of the conference’s “showcase” panels — large sessions that were scheduled alongside no other events so that everyone could attend them — were a part of this. These four showcase panels emphasized complaints that Federalist Society conservatives often feel out of place at law schools, at large law firms, inside bar associations, and in the legal profession more broadly.
But the thing about these sorts of grievances — which frequently mirror broader conservative complaints about a so-called “cancel culture” — is that, even if you agree that such cultural complaints cry out for a solution, these are rarely the sort of problems that lawyers are capable of solving.
A conservative law student who is unpopular with their classmates cannot seek an injunction requiring their fellow students to like them. Nor should a conservative lawyer be able to successfully sue their colleagues for ostracizing them. The First Amendment places strict limits on the law’s ability to shape culture, and it simply isn’t possible for the government to force people to change their minds about anything.
There is also a very real tension between these two conferences, though the Federalist Society itself does not seem aware of it. If members of the Federalist Society feel isolated in their jobs or at their schools, they should consider that the policy victories their organization touted in its first conference drive many lawyers and law students to resent Federalist Society colleagues who celebrate those victories.
It is asking a lot, for example, for members of the society to expect to be welcomed with enthusiasm by their women colleagues — after the society’s justices just seized control of those women’s uteruses.
The Federalist Society craves acceptance from elite institutions
The Federalist Society knows how to hold a grudge.
In 1987, in a bipartisan 58-42 vote, the Senate voted to reject conservative Judge Robert Bork’s nomination to the Supreme Court. Thirty-five years later, the Federalist Society is still bitter. Indeed, this year’s convention concluded with an hourlong “Hon. Robert H. Bork Memorial Lecture,” in which federal appellate Judge A. Raymond Randolph compared Bork to Albert Einstein.
“One of the Democrats’ main attacks was that Judge Bork was out of the legal mainstream,” Randolph lamented, before claiming that attack “has no intellectual content,” that it “tells us nothing about truth,” and proclaiming that Einstein “was out of the scientific mainstream, and thank God he was.”
Randolph’s rage centered on the fact that Bork was judged not on the basis of his exceptional intellectual accomplishments, but instead on how his far-right political views would lead him to reshape the law (among many other things, Bork wrote in 1963 that federal legislation banning whites-only lunch counters is rooted in a “principle of unsurpassed ugliness”).
When Bork was up for confirmation, Randolph decried, “it didn’t matter that the Supreme Court had never reversed any of Bob’s judicial opinions.” Or that The Antitrust Paradox, a book authored by Bork, “had by that time defined the mainstream of antitrust law.”
Randolph’s defense of Bork was echoed by other Federalist Society speakers, including Northwestern University law professor John McGinnis, who railed against opponents of Bork’s confirmation who deemed the judge unfit for the Supreme Court despite the fact that he “had been Solicitor General of the United States, a professor at Yale Law School, and author of the most influential book on antitrust law in the history of the subject.”
Bork was, indeed, one of the conservative legal movement’s greatest intellects. He was one of the most significant — quite possibly the most significant — antitrust scholars in American history. The conservative legal movement sent America its best mind, and the Senate took one look at his conservatism and said “no thanks.”
The fact that the Federalist Society still seethes over this lost political fight, more than three decades later, is a microcosm for the need for respect and acceptance from elite institutions that animates so much of the society’s rhetoric.
In a showcase panel about “The Mission of Law Schools,” for example, Northwestern law professor Joshua Kleinfeld claimed that “cancellations” on law school campuses are “just the tip of a very, very, very big iceberg.” “Something momentous is happening,” Kleinfeld warned, which has destroyed law schools’ commitment to “open inquiry based on argument and evidence.”
And this culture has spread past law schools, at least according to the Federalist Society panel on the culture of large law firms. There, panelists complained that, as Supreme Court advocate Kannon Shanmugam put it, “there are two types of law firms: liberal and more liberal in terms of the makeup of the lawyers who work there.”
One frustrating thing about the conference, at least for an observer who does not share the society’s viewpoint, is that many of the speakers on these panels seemed to just assume that forces like “cancel culture” are serious problems and that there was no need to justify that claim. So it was often difficult to pin down what, exactly, had been done to these lawyers to spark their indignation, and what problem, exactly, they might want to solve. And when a few panelists did try to provide evidence for their broad claims, the evidence was quite thin.
Kleinfeld, for example, offered only two anecdotes to support his warnings of a giant iceberg, one of which didn’t even involve a law school. Specifically, he claimed that a single college freshman on an unnamed campus was harassed and stalked by his classmates after he expressed the view that women tend to have different career preferences than men for genetic reasons. And he also told a tale about an unnamed law professor at an unnamed law school, who allegedly was pressured to take early retirement after students falsely accused him of making racist statements in class.
Meanwhile, the task of quantifying large law firms’ excessive liberalism fell to former Solicitor General Paul Clement, who argued that, at least in the most high-profile, most politically charged cases heard by the Supreme Court, the nation’s largest law firms are reluctant to file amicus briefs on behalf of conservative political causes.
Clement researched the Supreme Court’s recent anti-abortion case Dobbs v. Jackson Women’s Health Organization (2022) and found that 24 of the nation’s 100 largest law firms filed amicus briefs on the pro-abortion side, while none of the 100 filed anti-abortion briefs. Similarly, in West Virginia v. EPA (2022), the case striking down part of the EPA’s ability to regulate power generation, Clement claimed that four of the nation’s largest firms filed a brief on the Biden administration’s side, while none supported the conservative movement’s position.
It’s worth acknowledging that large law firms are hardly the sort of employers where economically conservative lawyers — as opposed to socially conservative lawyers — will feel unwelcome. These firms, which typically charge hundreds of dollars an hour for even their most junior lawyers’ time, overwhelmingly serve wealthy individuals and corporations who do not want to be sued, taxed, or regulated. And an enormous amount of the work at these firms focuses on keeping these clients happy.
That said, I have little doubt that Kleinfeld, Shanmugam, and Clement are describing something real when they argue that cultural conservatives are in the minority within elite legal institutions. The reasons why, however, are hardly nefarious. They are largely driven by market forces, and by the political preferences of university students.
Young people overwhelmingly reject the Federalist Society’s values
In CNN’s exit polls of the 2022 election, voters with college degrees preferred Democrats over Republicans by 10 points. Voters under age 30 preferred Democrats by nearly 30 points. Admittedly, exit polls are often imperfect measures of public preferences, but various polls have shown that young people strongly favor Democrats since at least 2008. And one other indicator backs up the claim that college-educated young people are especially liberal: On many university campuses, Democrats ran up truly astounding margins in the most recent election.
So, while Kleinfeld’s vague anecdotes about a single bullied student and a single retired professor tell us absolutely nothing about the culture of universities writ large, it is entirely believable that Kleinfeld and other conservatives on university campuses feel like they are part of an increasingly small minority.
And these trends impact employers no less than law schools.
The large law firms that Shanmugam and Clement spoke of at their panel are the sorts of firms that pay young associates outlandish amounts of money to work punishing hours for demanding clients. Many recent graduates enter these firms intending to leave as soon as their student loans are paid off. Others seek a few years of on-the-job training before moving on to more desirable work. At the most prestigious firms, only a tiny percentage of incoming associates make partner, and the rest are often pushed out the door if they do not leave voluntarily.
These firms’ business models, in other words, depend on a constant churn of young lawyers, recruited from an overwhelmingly left-leaning cohort of recent law graduates. To sustain this model, the biggest firms must compete with each other to build a work culture that will attract highly educated young people — a demographic that is heavily Democratic.
So there is a name for the force that is driving Big Law’s culture to the left — and the name of that force is “capitalism.” Successful employers build workplace cultures that will allow them to hire talented people and retain employees who perform well.
What, exactly, does the Federalist Society plan to do about its cultural grievances?
For all of the society’s fears that they are unwelcome in elite legal institutions, they had few ideas that are likely to quell these fears. Sometimes they were quite open about this fact. At the end of his presentation about large law firms, for example, Clement conceded that “I think the problem is pretty glaring,” but “the solutions are much harder to find.”
He’s certainly not wrong about that. What, exactly, would a policy solution to the supposed problem that Clement identifies look like? Should lawyers at large firms be forced to represent clients they find abhorrent, and to make arguments that they believe would deeply harm their country? Should state bar regulators impose quotas on these firms, and mandate that a certain percentage of their partners must have voted for Donald Trump? These are the kinds of solutions that, even if they survived scrutiny under the First Amendment, could only spark even deeper resentment against conservatives.
Similarly, what, exactly, should be done to change law schools? Should professors who teach from a left-leaning perspective be sanctioned or stripped of tenure? Or perhaps, fresh off the Supreme Court’s likely decision ending race-conscious affirmative action programs in university admissions, the Court could then mandate that law schools admit a critical mass of Republicans?
Changing culture is not easy, and people across the political spectrum who wish to shape an institution’s culture often struggle to make headway. The evidence on the effectiveness of the sort of workplace diversity trainings sometimes advocated by liberals, for example, is mixed at best. Universities and education policymakers have struggled for years to rein in the culture of sexual assault that exists on many campuses.
That said, there are definitely some figures within the Federalist Society who favor draconian measures to try to shift culture. At last year’s Federalist Society conference, speakers proposed an array of far-right solutions to what they described as the problem of “wokeness” in society — ranging from repealing the ban on discrimination on the basis of “race, sex, religion, and national origin,” to enacting laws requiring social media companies to publish speech they deem offensive, to a vague-but-ominous proposal to “wield in state legislative chambers some degree of power to punish our enemies within the confines of the rule of law.”
Meanwhile, a few of the Federalist Society’s most powerful supporters openly embrace the kind of censorship and intimidation of liberal voices that our First Amendment forbids. Florida Gov. Ron DeSantis (R), a frequent speaker at the society’s events, recently signed legislation imposing a speech code on public university professors. As a federal judge described the law in a decision striking it down, it “bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints” on various subjects relating to race, gender, and nationality.
Similarly, two of the Federalist Society’s justices, Thomas and Gorsuch, have called for the Court to overrule New York Times v. Sullivan (1964), a fundament of American press freedom, and arguably the single most important First Amendment decision in the Court’s history.
New York Times overturned a $500,000 verdict (just under $5 million in today’s dollars) that an Alabama court awarded to a Jim Crow official, ostensibly because the Times published a pro-civil rights advertisement that contained some minor factual errors. More broadly, New York Times ensured that public officials may not use malicious libel suits to target media outlets that criticize the government. Or who criticize officials like, say, Judge William Pryor.
So the Federalist Society’s most powerful figures have some tools which they could use to force liberal institutions to show more outward respect to conservative ideas. It is certainly possible for an authoritarian government to twist culture into the conservative movement’s preferred shape, and Thomas and Gorsuch have laid out the first step toward doing so: strip the media of its First Amendment protections. After that, maybe they could do the same to law schools and law firms as well.
But if the Federalist Society embraces some of these more aggressive policies, its members should not be surprised that the rest of the legal profession might resent them for it. Nor should they be surprised that so many lawyers, law professors, and law students resent them for what they have already done to American law.
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Climate change rally. (photo: Christophe Gateau/picture alliance/Getty Images)
At COP 27, negotiators have been haggling over how to pay for the mounting costs of climate change.
The number was arbitrary, tossed into the fray by then-Secretary of State Hillary Clinton as tensions rose over rich countries’ responsibility to pay for the problem they had largely caused. But it stuck, and 2020 was set as a goal for delivering the funds.
This week, at the United Nations climate conference in Sharm el-Sheikh, Egypt, or COP27, these payments were once again front and center. Wealthy nations have yet to meet their $100 billion a year promise, the costs of mitigating and adapting to climate change are only growing, and developing nations are now calling for reparations for the impacts they are already suffering.
A report released last week found developing countries, excluding China, will need $2 trillion a year to deal with the worsening impacts of global warming and transition their economies away from fossil fuels. Half of that money “can be reasonably expected” to come from domestic sources, the report said, but international finance — from wealthy countries to the World Bank — must make up the rest.
How that money will be raised and provided to developing nations has been a focus of negotiations in Egypt. Everything is on the table.
“Over the last few months, the role of different institutions has come to the fore,” said Preety Bhandari, a senior advisor in global climate and finance at the World Resources Institute.
Here is an overview of the major strategies being discussed to pay for the mounting costs of climate change:
Unlocking Private Sector Finance
Historically, the bulk of the money for climate finance has come from the public sector — national coffers as well as multilateral development banks like the World Bank and the International Monetary Fund, or IMF. But with the costs of climate adaptation and mitigation rising, officials say there is simply not enough money in the public sector to meet climate finance goals for developing countries.
“There is only one place you find the money we need in the trillions of dollars,” U.S. climate envoy John Kerry said in an interview with the Financial Times in May. “That’s the private sector.”
So far, however, it has been hard to get the private sector to fund projects in the countries that need it most. One report from a climate finance group found that the amount of private capital provided for public-private climate partnerships is actually shrinking. “Every public dollar spent is now mobilizing less than a quarter of private investment,” said Patrick Bigger, research director at the Climate and Community Project.
Last year, several wealthy governments joined forces with investment banks to launch a Just Energy Transition Partnership, or JETP, with South Africa to help the developing nation phase off coal; money has been slow to materialize and the program is expecting a $39 billion shortfall over the next five years. At COP27, another partnership was announced with Indonesia, one of the world’s top exporters of coal, and more are in the works with India and Senegal.
Calls to increase funding through such “blended finance” strategies are ongoing, but some countries, like Vietnam, have rejected initial JETP packages because they’re primarily composed of loans instead of grants. John Kerry’s proposal to shore up private investment in JETPs through carbon credits was met with pushback. And developing countries have been wary about relying too much on the private sector to meet the $100 billion goal, saying that rich countries are dodging their own responsibility to pay.
Of particular concern is relying on the private sector to fund adaptation projects. A restored mangrove swamp or an early storm warning system, for instance, doesn’t generate the financial returns that a solar farm does. Over two-thirds of the money raised toward the $100 billion goal to date has been for climate change mitigation. Developing countries are now asking for a more even split, with half of all climate finance flowing to adaptation. Language in the current draft text released Friday recalls a commitment from last year in Glasgow to double adaptation funding to $40 billion per year and develop a roadmap to get there by 2025.
More Payouts from Multilateral Development Banks
Calls for the World Bank, IMF, and other multilateral development banks to open their coffers continue to grow louder. These banks, public institutions established with the goal of rebuilding war-torn nations after WWII, have massive sums of money at their disposal, but they are conservative and slow to spend it. Experts say they are over-concerned with their credit rating and too hesitant to take on financial risk.
Barbados Prime Minister Mia Mottley has called for a reform of these banks in her Bridgetown Agenda, a proposal to change the global financial architecture to support climate action and sustainable development. The plan has been getting a lot of traction at COP27. It calls on the IMF to, among other things, issue $1 trillion in low-interest, long-term loans to climate-vulnerable countries and simplify fast access to funding. It also proposes a climate mitigation trust that would release $650 billion in special drawing rights, credits that can be exchanged for currency and don’t need to be paid back, or that can be borrowed from other countries at low interest rates.
The call to overhaul international finance institutions has found support in the U.S. and Germany; French President Emmanuel Macron agreed to suggest changes with Mottley at the next meetings of the IMF and World Bank governors. And the second version of the COP27 draft retained language on multilateral development bank reform.
Beyond low-interest lending, developing countries are also calling for more grants from wealthy nations and multilateral development banks. Over 70 percent of climate funding for developing nations has been doled out in the form of loans, which add to already exorbitantly high debt burdens.
Addressing the Debt Crisis
Because of the legacies of colonialism and slavery that funneled labor and resources away from the Global South, many developing countries have had to borrow money to meet basic needs. At the same time, these countries are perceived as riskier investments and have had to pay higher premiums and interest rates than rich countries. Current inflation is only making the whole situation worse. Two-thirds of low-income countries are at high risk of debt distress, and this crisis has made it harder for them to prioritize spending on climate change.
“As we run into this economic climate, it’s very easy to go the austerity route,” said Sara Jane Ahmed, financial advisor for the V20, a group of finance ministers from 58 of the countries most vulnerable to climate change. “It’s so important — given the need to invest now and adapt and build resilient economies and communities — that we not go that route.”
The section on finance in the COP27 draft text notes the increased indebtedness of developing countries and mentions the importance of scaling-up grants and “non-debt instruments.” Other solutions circling around include debt restructuring at lower interest rates, suspension of loan payments after natural disasters, debt-for-nature swaps, and outright debt cancellation, which public figures in Pakistan have called for after crippling debt restricted the country’s ability to respond to devastating floods this year.
The Nature Conservancy has orchestrated swaps in places like the Seychelles, Belize, and Barbados, where countries’ debt is refinanced at a lower interest rate and in exchange, the money saved goes to conservation. But as Kevin Bender, who runs these programs in African and Indian Ocean nations notes, it has been hard to get investors on board.
“Some sort of debt restructure is an inevitability,” said Bigger, who co-authored a report with OlĂșfáșč́mi O. TĂĄĂwĂČ on how debt restructuring and cancellation could be a first step toward climate reparations for climate-vulnerable countries. “The question is will there be a concerted push to do it well now, or will it be done through piecemeal initiatives like you had across the 80s and 90s until you get to ‘Heavily Indebted Poor Countries Initiative’?”
That program, which cleared IMF and World Bank debt for the poorest countries, showed that with enough political will, debt cancellation is possible.
Loss and Damage
A concept known as “loss and damage” has become a major driver of discussions at this year’s COP. Separate from but related to adaptation, loss and damage refers to the destruction already being caused by climate change, and the future loss that will be inevitable. Funding for loss and damage has also been referred to as climate reparations.
Developing countries have been calling for loss and damage funding for years. They bear the brunt of climate impacts despite contributing the least to global warming. In Egypt, nations are demanding that industrialized countries commit to a dedicated funding mechanism for loss and damage, separate from adaptation. The details of how much money would go into the fund and where it would come from would be worked out later, but there have been some suggestions of sources, including taxes on oil and gas profits or on airlines, frequent fliers, and shipping companies. Developing nations have also been adamant that funding for loss and damage be grant-based. While the United States has resisted taking on liability for loss and damage, the idea of taxing private companies was received with openness by John Kerry.
Earlier this week, a group of some of the most industrialized countries, led by Germany, proposed a program called the Global Shield, which would include insurance, social security, and other financial assistance that could be deployed when disaster strikes. But loss and damage advocates have rejected the proposal on grounds that it is unfair to have people in developing countries pay for insurance, that it detracts from the call for a separate direct funding mechanism, and that payouts for similar schemes have been delayed, withheld, or insufficient.
Discussions have hit a breaking point over loss and damage; on Friday morning, the European Union surprised negotiators by agreeing to a new fund. At stake is now whether the U.S. will support it, and whether countries like China, Saudi Arabia, and Russia, who were not considered developed countries when the terms were first defined in 1992 but are now some of the world’s leading economies, will be on the hook to contribute.
Despite the urgency of the climate crisis, final decisions and commitments on how much additional money is needed and where it will come from are still a few years away. Bodies like the IMF and World Bank that decide things like debt forgiveness and special drawing rights operate outside of the UN climate convention, but “this COP can send a signal for changes that will happen over the next few years,” said Bhandari.
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