Deep Dive with Shawn C. Fettig

2023 State of the Union (w/ Drs. Faris, Benesh, and Hawdon)

December 31, 2023 Dr. David Faris, Dr. Sara Benesh, Dr. James Hawdon Episode 59
Deep Dive with Shawn C. Fettig
2023 State of the Union (w/ Drs. Faris, Benesh, and Hawdon)
Show Notes Transcript Chapter Markers

Embark on a critical journey through the shifting political landscape of America as I host a powerhouse trio of experts to help us understand the most pressing issues facing the nation. Dr. Sarah Benesh examines the Supreme Court's recent decisions, Dr. James Hawdon dissects the undercurrents of political unrest, and Dr. David Faris unpacks the Democratic Party's internal struggles and the quest for a unifying agenda. As the 2024 election horizon looms, we delve into the complexities of voter disenchantment, ideological battles, and the quest for a proactive vision of America's future.

The stakes have never been higher as we scrutinize the Supreme Court's trajectory and the delicate balance of conservative ideologies against states' rights. How are recent rulings shaping the court's reputation and affecting hot-button issues like queer rights, gun laws, and reproductive autonomy? We navigate these treacherous waters, reflecting on Justice Sandra Day O'Connor's legacy and questioning whether the Supreme Court can maintain its legitimacy amidst the ever-intensifying political fray.

And, we confront the unsettling state of political violence in the U.S., and its impact on our democracy, pondering if the relative peace is genuine or a harbinger of further discord. Through a critical lens, we evaluate the rise of hate groups, the international reach of extremist ideologies, and the alarming possibility that such violence may be normalized within mainstream politics. Join us as we explore the implications of these developments for democratic institutions and consider the path ahead for a nation at the crossroads and heading into a critical election year.

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**Artwork: Dovi Design
**Music: Joystock

Dr. Benesh:

I finally returned it, but I then started reading it before I returned it.

Shawn:

Oh, I did that too.

Dr. Benesh:

I read about half of it before I had to bring it back and I have it on Request from my local library so I can finish it. But yeah, I've been thinking a lot about her and her legacy lately because she was super Republican but in that bygone era of Republicans right that we're still interested in compromise and we're still thoughtful and willing to learn and discuss things. And you know, at least this portrait of her I thought was it's not a hagiography, but it's flattering.

Dr. Benesh:

But I learned a lot about her proclivity to try to engage people in conversation and try to be a uniter and a pragmatist and, I think, a court with O'Connor on, it would not have decided a case like Dobbs right, I mean.

Dr. Hawdon:

Alito is no.

Dr. Benesh:

O'Connor.

Shawn:

No, he's not. Welcome to Deep Dive with me, Shawn C Fettig, and welcome to our second annual Deep Dive State of the Union, where I invite some friends of the pod back to the show to take a deep breath in and a long look back on the year 2023, that, in true American fashion, gave us plenty of drama and enough uncertainty to leave us wondering what in the world is 2024 going to be like? 2023 was a year where the Supreme Court continued to flex its muscles, delivering landmark decisions on guns, affirmative action, separation of church and state and queer rights. Political violence remains a very potent possibility, with far right and fundamental evangelicals recruiting, weaponizing and radicalizing. And the very fabric of American democracy seems to be fraying at the edges, with polarization deepening and trust in our institutions steadily and rapidly deteriorating. And we'll talk about all of this, but this isn't just a post-mortem. We're not just here to mourn the past. We're here to prepare for the future. So, after dissecting the trends of 2023, we'll turn to the horizon. We'll ask what these trends mean for 2024, a year that promises to be a bit more drama. With the presidential election looming, will the Supreme Court's decisions galvanize or alienate voters? Will political violence continue to cast a shadow over our political discourse and, most importantly, can American democracy find its footing or will it all come tumbling down?

Shawn:

So today, dr Sarah Benesh returns to discuss the Supreme Court's seismic shifts, how the institution is changing from the inside out and what that means for the future of American life. And Dr James Hawdon and I delve into the dark corners of political violence, discussing how we got here, whether the trend shows any signs of reversing and what form political violence might take as we approach the 2024 election. A And, of course, we can't ignore the state of American democracy. Is it on life support or is it just on some kind of hiatus? So I, along with my first guest, dr David Faris, explore the cracks in the foundation, but also the glimmers of hope that might just keep the whole thing from coming apart.

Shawn:

If you liked this episode, or any episode, please give it a like on your favorite podcast platform and or subscribe to the podcast on YouTube. And, as always, if you have any thoughts, questions or comments, please feel free to email me at deepdivewithshawn@ gmail. com. Let's do a deep dive. Dr Faris, welcome back. How are you?

Dr. Faris:

I'm doing well, Shawn. How are you?

Shawn:

For now I'm doing well, thanks. We'll see how I'm feeling at the end of this. Okay, so I wanted to have you back talk a little bit about the issues surrounding the 2024 election, or maybe the overall issues fear. So the last time you were on the show, we talked about the Supreme Court's Dobbs decision, overturning row, and how it seemed like a gift to Democrats, at least in the short term. But you argued that eventually Democrats would need to have a positive agenda if they want to win elections, so they can't just continue to rely on the bad policy or the disarray or the dysfunction of the Republican party.

Shawn:

And I guess I wonder if that moment has arrived. Polling shows that Biden is losing in swing states to Trump. Young voters seem skeptical of Biden, muslims aren't happy with Biden's handling of the conflict in Gaza, black and Hispanic voters, especially men, seem to be open to Trump's message, and Democrats aren't really selling anything. So what do you think is going on and how do you think this is impacting the electorate? I mean, should Democrats or should the country be worried?

Dr. Faris:

The country should definitely be worried. Yeah, I mean, I will say I think there's a few caveats to keep in mind when you're looking at this landscape and I agree that it is not the landscape that we were hoping to be looking at heading into this election. But the year before a incumbent president faces reelection is generally a difficult time for the governing party. It's been long enough. Biden has had three years to irritate his own coalition allies. You've got sort of like disappointment and resignation setting in among a lot of Democratic partisans and activists who realize that probably nothing particularly good is going to happen over the next year, legislatively Right. So you go from that phase with a newly reelected president and we got that sort of like perfect, perfect double Georgia win to get the Senate barely. You have all that optimism and expectations in January 2021. And we're at that point where reality has set in for everyone, and that tends to be a time where people who will come around eventually to vote for Biden are telling pollsters that they want, or telling pollsters that they will support third party candidates that on election day they won't turn out for, or they'll change their mind in the voting booth or the way to the voting booth, and so I think that there's reasons to think that this is Biden's floor. That's just. At least. One good thing about what we're looking at is that we're at the floor and Democrats still perform pretty well in these.

Dr. Faris:

Off your elections last month to the point where we want a Brett State governorship, we almost won another one.

Dr. Faris:

Democrats did really well in school board elections and state legislative elections all around the country.

Dr. Faris:

Like not every single important race did we win, but most of them we did, and that's very hard to square with this picture of the president as like a sitting duck who can't possibly win next year. So I think that there are reasons to have a little bit of guarded optimism that President Biden and the Democrats can make a rebound, especially when and I think this is the other thing kind of going on under the hood here is that the possibility of Trump becoming president again is, at this point, abstract and theoretical and not tangible. And if he does in fact win the Republican nomination, I think the reality of what he is, what he means, what he's going to bring us back to, will also change a lot of minds. The question is really, can it change enough, given the way that people feel about Joe Biden, and that's sort of an impossible question to answer right now, but certainly the president doesn't look or sound like somebody that's going to rally the troops with enthusiasm and motivation next year doesn't seem to have that power in him anymore.

Shawn:

Yeah and so okay, so like to level set right. We're a year out and I think we're in a time period I think 2015, 2016 was you know. I mean, again, everything with Trump is new and people haven't figured it out like pollsters. And where I'm going with this is the electoral calendar.

Shawn:

His announcing essentially two years out is, in contemporary times, not that normal and I think my expectation is that, like the Biden administration is leveling up and adjusting to that and I have to assume they have a plan and that they have a strategy, but they're keeping those cards really close to the vest and I think it's freaking people out because, you know, I see Biden not saying much and I wonder if part of this is like, look, the Republicans are kind of a shit show and as long as they can keep quiet, they won't take the fire. But at some point my hope is that they have a strategy, that they unveil and we, you know, see a little more firepower coming from Democrats and particularly Biden. But I'm really worried that this is the best they're going to do and their hope is in the negative that people will, like you said, on the day in the ballot box. That's when they start to picture. You know what a Trump presidency might look like, but that just doesn't seem like a viable. It scares the crap out of me.

Dr. Faris:

It scares me too, and I hope that there's not a level of complacency that has set in in the sense that we've we've seen multiple cycles in the last 10 years where Trump himself and like the weirdness of the Trump like mega candidate world has seemingly rescued Democrats from a challenging political environment. And if you think about 2018, that should have actually been a challenging environment for the opposite Right, like the economy was booming, I you know, especially in comparison to what happened to us all two years later. It was an it should have been an okay time for the governing party right and Democrats just like clean their clocks, and I think that had a lot to do with Trump himself and his like uniquely repellent personality and the sort of the hijinks and mischief and crimes and misdemeanors that he gets himself into. And I think that would deal with 2022, right, which should have been a just a just a wipe out of the Democratic party, given the mood of the voting electorate about things like inflation and crime and it's sort of like, I think, general frustration with the social contract and the aftermath of COVID. We did well again there, right and like again a month ago, where there were a lot of indicators pointing in the other direction and and yet Democrats over performed expectations. I don't know that they really over performed polls right, they were getting a little bit overconfident in that respect. The polls were okay, yeah, but the expectations were that Democrats should have been taking a beating in all these elections and time after time Republicans put up candidates who just were unacceptable to those.

Dr. Faris:

That slice of the electorate that changed its mind between elections and I think particularly suburban voters are kind of fed up with some of the bizarre antics of the far right at this point and I'm just hoping that Biden's team doesn't think that Republicans are going to do all their work for them, because you know they need to have something to offer beyond. Like we're going to keep this guy out of office because you know, when you've been in power for four years, that doesn't work on the electorate anymore. Like the electorate is tired of you and you have to make the case to them that returning you to power is worthwhile because something positive will change in their lives, and I don't see the party offering that kind of agenda. And it's hard because we are missing a branch of Congress and we can't do anything right now. Right, so it's like you have to sort of make a policy agenda, as if you're the opposition While you're sitting with the presidency and people who don't know about government are going to be like, well, why don't you just do it right now, because you're the president? Like, what's stopping you? And so that's a hard line to walk. But that's what Biden needs to do, right, like he needs to spend a lot of time negatively reminding people of what Donald Trump means. He doesn't have to define Trump. He said that's done. That dude has, like, 100% name recognition. But he does have to. He does have to offer compelling contrasts.

Dr. Faris:

You know what would happen if you return Democrats to office, gave them the house back and kept the Senate and Biden wins reelection. What would they do? I don't know. Like I don't know, and I'm like a Democratic partisan. I don't really know what they want to do, aside from quote unquote, codify row, which I'm not even sure is sufficient. So it's like they need to get their heads together and start talking about the things that are top of mind for voters, and the things that are top of mind for voters are different than in 2020. Right, it's not about like elect somebody that believes in science and the rest will take care of itself. They're totally different environment out there and voters have a lot of different needs and worries that may not always even square with political reality, but that's what they're telling pollsters. They care about, which is like prices, interest rates, crime even though crime is down in a lot of places. Rather, you have to meet the voters where they are and Democrats need a plan here and I'm not seeing it, and that definitely concerns me.

Shawn:

I also wonder if I feel, like you know, the Republican Party is going through a civil war to some degree between this far right mega extreme and then the moderates who you know. I think mega extremists in the party have got their number right, that moderates eventually will cave. But so that's creating a whole circus side show that's taking up a lot of attention. But I feel like there's this looming civil war for the Democratic Party as well that has just been put off by what's going on with the Republican Party. So it's the Democratic Party writ large, but specifically at the elite leadership level can has been coasting. But I'm a little worried that when this all shakes out with the Republican Party and they figure out, whatever they are, that there's this massive potential civil war right in the Democratic Party, do you get a sense of that?

Dr. Faris:

I get it? Yeah, definitely. I think that there is a growing and uninterested and possibly unaddressable generational rift and the Democratic Party it's something I wrote about and the kids are all left and 2020. And I think it's only gotten worse because I had a little caveat in that book that was like man, if somebody like Biden wins the nomination and then spins his wheels for several years, young voters are going to just going to walk away. And so the events in Israel and Palestine over the last month have been, I think, the best sort of lesson.

Dr. Faris:

And what exactly is dividing younger from older voters? Really, younger Democrats are just dramatically more supportive of the Palestinian national cause than older Democrats are, whose whose instinct is to, is to embrace Israel. I think, you know, sometimes a little bit critically, and it's a very complicated and complex issue, but the reality is like that's. You know, that's a good example of the kinds of things that younger voters think that older voter, older Democrats, don't get. And I'm worried, like I think, that that that the coalition, the generational coalition, has been held together by fear for so long, that that that split is going to is going to kind of bust out into the open and the not too distant future. I mean I think it's possible that it can be kept together through another election cycle, but they're gonna have to work at it. And younger voters I mean I can't tell you how many of my students like run around calling Joe Biden genocide, joe, stuff like that, like really yeah, and my, my students were like a sort of a thunder for me in 2016.

Dr. Faris:

When I was like you know, I initially looked at the Sanders candidacy and I was like, well, there's no way this guy can win, right, and then I saw how my students felt about him and I saw the frustration with the sort of the status quo and the Democratic and the stuff.

Dr. Faris:

And that turned out to really be a harbinger of how younger Democrats felt about the party in general, and I think it was papered over by the disaster of Trump and Trump is and and the necessity to get rid of him. But that splits not only there. It's a that's a broader than the electorate now and gives like ready to rebel against democratic leadership. I don't necessarily think they have huge, huge numbers in the country at large, but but that's a slice of the party that the party needs to win. And so I think Biden can't wave a magic one, but I think he does start to need. He does need to start thinking about coalition politics and like what kinds of not just sort of like empty premises, like what are you going to do about some of these issues where the center of the party has gotten away from, I think, the activist wing, and that's a balancing act that both parties have to play, but I don't think Biden's doing a very good job. Good job right now, just to be brutally honest.

Shawn:

I use worried about a second Trump presidency, as some people are arguing we should be.

Dr. Faris:

I think it's concerning yeah, I mean the way that he is talking, you know, referring to like Democrats and leftists as a vermin. I mean, there's always been an incipient sort of fascist violence at the heart of Trump's largely incoherent rhetoric, but it has become more obvious lately. There's the, you know, agenda 2025, project 2025 stuff coming out of like right-wing thinklandia. That, I think, is, you know, they have a much better sense of what they want to do when they get into power than they did last time. And that should concern us, because what allowed us to wrong foot the Republicans in 2017 was that they largely had no idea what they were doing. They didn't expect to win. They couldn't get anyone credible to work for them, and the forces of Maga and Trump have taken over the Republican Party and they're, like, ready to govern. You know, like, is everything that they want to do going to pass constitutional muster? No, but they have, you know, they have a significantly more decisive control of the judiciary, at least at the top, than it did in 2017. And there's no particular reason to think that he's not actually going to do these things. So you have a guy that is like dangerous in general, but is also looking to exact vengeance on his enemies, and that's also clear from everything that he says.

Dr. Faris:

It's like we elect this person who wants to do all these sort of anti-democratic things and it's personal for him and yeah, I'm worried about that. You know, just like last time, there would be some institutions to constrain him, but that also depends on the scale of the victory. You know, if Trump wins you know significant majorities in both chambers of Congress and the presidency, and he's got the Supreme Court in his pocket he's going to do largely whatever he wants to do, and that's the kind of reality that I think needs to sink in across the democratic-leaning electorate is that this is a real threat. You know this is not. You know you can be as frustrated as you want with Joe Biden, but at the end of the day, this is the alternative. I mean, if you don't want to see this alternative come to fruition, we need you on board one more time, and that's a tough sell this time around, because that's the song we've been singing for a long time.

Shawn:

You know, okay. Well, here's a hard pivot to something less apocalyptic. So, the election notwithstanding, what's something you're looking forward to in the new year?

Dr. Faris:

Well, all kinds of stuff. You know I have a nine-month-old daughter, so I'm looking forward to her first birthday party. I've always said, you know, that I would pay real money to start an app where you just watch kids eat their birthday cake on their first birthday. So it's really exciting to see her grow and come into her own and I'm looking forward to that. And you know we have some cool vacation plans set up for the summer and you know, politically I am looking forward to, I guess, the seriousness, the graveness, the gravity of the situation, kind of focusing the minds of democratic thinkers and coming up with things that might energize our electorate New ideas, new blood, new ways of approaching the problem of this national stalemate where it seems like we're flipping power back and forth every eight minutes.

Dr. Faris:

I think that, by necessity, you're going to see some innovation this year also from our side, and I also think that you're going to see the first glimmer of a kind of a post-Biden succession battle. However, this is all going to turn out the minute that the election is over, one way or the other is going to set off a battle for the future of the Democratic Party. That's kind of an exciting thing to think about right. I mean, I think that the boomers are being sent out, ushered off the stage. Finally, you know, maybe it'll be 2029. I guess that's the best case scenario, is we usher Biden out of 2029.

Dr. Faris:

Nevertheless, he will be, I think, a relatively weak second term president. I think the forces that are kind of jockeying to succeed him and to replace his leadership inside the party will begin in earnest the day after the election and that's in 2025. That's all happening this year, yeah, yeah, no. It's sort of a world historical presidential election coming up. We have the opportunity to win again. As bad as the polls look right now, I do think that there's a lot of reasons to look at them with skepticism and I would say I'm looking forward to winning. I would like to govern again. I think there's a lot that we could still do, even with a president that I guess the progressive left doesn't always see eye to eye with. I think there's still a lot of things we could accomplish that would make people's lives better, and I look forward to trying to get that done.

Shawn:

You know, what I'd like is to stop living on a knife's edge.

Dr. Faris:

Yeah, I know right, it would be cool to experience the late 90s again, just for a couple of hours.

Shawn:

Yeah, just for a couple of hours. Dr Faris always thanks for stopping by. Happy holidays and enjoy the new year.

Dr. Faris:

Thanks, Shawn. It's always a pleasure to join you on the show. Happy holidays to you, too, and I hope 2024 brings everything that we hope it does.

Shawn:

Dr Benesh, welcome back. As always, it's an honor to have you here. How are you?

Dr. Benesh:

Oh, I'm good. Thanks so much for having me, Shawn. Always nice to talk to you.

Shawn:

So it's the end of the year and so I wanted to check in and get your thoughts, touch base on a couple of things I think that we've talked about in previous episodes, and see how you're thinking about that now, and maybe talk about a couple of specific cases that might be in front of the court and what we're thinking about next year.

Dr. Benesh:

So I'm good, I'll say stuff if I know anything.

Shawn:

Okay, perfect. I love how you set the. I think it's the ceiling.

Dr. Benesh:

I always do that right. I always warn the listeners that I may not know anything about what Shawn's asking me.

Shawn:

This is about the point where I start to see a massive listenership drop off for this episode oh, this guest knows nothing Moving on. That's forward. Where are the commercials? You get a lot of listeners, but just for the commercials.

Dr. Benesh:

That'd be really bad, unless you had super cool sponsors.

Shawn:

Yeah, yeah, well, I don't. So, okay, let me set the stage here. So you know, when it comes to like the rule of law and a sound legal system and legitimacy things that we're interested in that's derived from these systems, courts and court actors are essentially in the business, from my perspective, of trying to persuade each other about interpretation and application of law, and then when the court issues opinions or its decisions, it's trying to persuade the public that the outcome has merit and that it makes some type of legal sense. So when the court issues decisions that are rooted in originalism something that we've kind of wrestled with on this podcast together in the past, which is what this court is doing and which doesn't seem to apply equally and evenly across all cases and issues, but instead is designed to always support a specific outcome this is something that you've mentioned it kind of short circuits this process of persuasion. To my mind, there's really no reason to it. In that sense, I think people are less likely to accept it because it doesn't make a lot of sense to them and then, by extension, I think that harms the court's legitimacy. So this court seems to have been behaving this way it relies on originalism and also the shadow docket, so the hidden docket from the public, that in which quick, emergency decisions are made without any real reasoning behind them. But now it seems like they may be trying to write themselves.

Shawn:

So let me tell you why I'm thinking that. So its recent decision in Allen v Milligan, the court struck down Alabama's gerrymandered districts. The reasoning was that it diluted the black vote, and so this seems to be a reversal to some of its earlier decisions related to gerrymandering. So that's one. But then also a couple of their recent not necessarily decisions, but actions related to gun laws seem to also be maybe signifying a direction change. So the questions that they asked in US v Rahimi this term, which hasn't been decided yet, suggests that a majority on the court might allow some type of restrictions for gun purchase and ownership for people convicted on domestic violence charges, so they might allow that to stand. And then they also recently refused to intervene in lower court decisions that allowed Illinois to ban AR-15s. So I guess, considering all of that, I'm wondering if this reads to you like a direction change, or if this is maybe just more chaff or like confusing direction for lower courts and legislatures coming from the Supreme Court. How are you reading all of this?

Dr. Benesh:

Yeah, that's interesting, I think. On the one hand, I think you could view it as a bit of a damaged control device from a court that recognizes that its legitimacy is at issue. On the other hand, you could read it as litigants overreaching. So for the domestic violence case, for example, there's an originalist argument to be made that we've always had regulation of guns for dangerous people. How you define danger is obviously much different than it would be now, but at least there's a principle they could stand on where they could say well, we do have this obligation to uphold the original understanding of the amendment, and this could comport with some original understanding of the amendment. And so this litigant is maybe trying to go too far with our jurisprudence.

Dr. Benesh:

I think maybe you could read it that way, I'm not sure. I mean, I think you know, in many ways I feel like the court is very interested in power and that explains some of the positions it takes on specific issues. But we know, at least anecdotally, that there are times when the court considers its legitimacy, and so you might be right that it's course correcting a bit.

Shawn:

Did you look at their reasoning for kicking back or not intervening in the lower court decision related to AR-15s in Illinois?

Dr. Benesh:

Did they give reasoning?

Shawn:

Yeah, so it was really short reasoning, but it was essentially that, and I found this fascinating. It makes me wonder if the court is actually trying to put some structure on originalism in a way that might make sense to people, and so the argument is that original laws related to bearing arms were not meant to protect weapons of mass destruction or that were designed to kill swaths of people. That was not the original intent, and so I'm wondering if that's them trying to put a structure around originalism in a way that the previous cases didn't, and if so, that suggests something that might be I don't want to say livable, but it suggests that they might be kind of revisiting something that strikes me as odd that they didn't think about in the original decisions.

Dr. Benesh:

Yeah, I mean because I do think that there was part of the decision making around. The Second Amendment is about this guns in general use at the time kind of idea that we have to consider things that are sort of quote unquote normal that regular people might own and use or choose to defend themselves with, and so I think you can I mean, obviously I would make, I could make an argument that AR-15s are not in that category, but maybe the court is coming to understand that they might be in a different category and yeah, I don't know, maybe that's a change of heart, maybe that's a movement or a recognition of the role of violence in our country and the rights of people to be free from violence of these kinds of sorts. I'm not sure, I don't.

Dr. Benesh:

I mean, you're also reading into you know, a decision not to decide and some oral arguments. So we're not I'm not sure we're there yet with a big change of heart on guns.

Shawn:

I wonder if behind the scenes they're kind of like we cannot let Alito or Thomas write decisions anymore.

Dr. Benesh:

I don't think that would be a bad idea.

Shawn:

Yeah, I mean on principle, hey. So I do want to run something past you. So I've been trying to figure this court out. We talked about this I think the last time you were on the podcast about how to characterize this court and I think we had come down on like look, we were just essentially one full term in and they're still figuring themselves out in the in the direction of the court.

Shawn:

But two things seem to kind of stick out to me and so it seems like the two things that drive this court the conservative majority anyway are cases and issues related to states' rights and conservative ideology.

Shawn:

And I think if a case speaks to one but not the other, we can predict the outcome will come down in favor of whichever side adheres to the conservative position or states' rights over federal intervention. But where I think it gets murky is where the court will come down when neither is an issue, so neither states' rights or a partisan ideology. This is really a small sliver of cases, I think. But also and this is probably where it's more present is when both of these both states' rights and conservative ideology exist on an issue before the court and suggest opposite outcomes. So where the states' rights position doesn't align with the preferred conservative outcome or vice versa, and I think that's where I'm having a hard time trying to just kind of figure out where this court lands on this. But now we've had a couple of terms with this court, so how would you characterize it? Broad strokes.

Dr. Benesh:

Hmm, I think, I think it's hard to. First of all, I have a hard time, generally speaking, characterizing the Supreme Court and broad strokes.

Shawn:

Oh, I don't.

Dr. Benesh:

I mean, I think there, you know, there are, you know. So we all, you know, talked about the Warren Court, right, and so obviously the Warren Court was activist and it was interested in promoting the rights and protections of people accused of crimes, and the Rehnquist Court was big on states' rights, right, that was kind of the thing that we say about the Rehnquist Court. For a while, I think what we said about the Roberts Court was that it was really friendly to business, right. So I don't know if this new version or new iteration of the Roberts Court with the Trump appointees, you know, I'm not, I'm not sure how I would characterize the focus of this court beyond what I, you know, I kind of hinted at this idea of power, but I also I think they're really interested in dismantling the administrative state as well. So I think maybe I mean that might be a theme that you could add to your list, but I wonder if you could maybe say more about the cases where you're seeing state rights and conservative outcomes kind of battling.

Shawn:

You know what got me thinking. What got me thinking about it was specific to like queer rights cases in front of the court. So we had the one case related to the non-existent website wedding website designer, where the court took this case and there was a conservative ideological position, I guess it was. It was, you know, somewhat of a state's rights as well, because they were overturning a state law related to discrimination. But then recently they also refused to take up a case that would have had them potentially overturn bans on conversion therapy for like queer kids and those two, if we just think about it, when it comes to conservative ideology, those two seem to seem to be like in opposition to each other. But they're both states' rights and if that's the case, then conservative ideology won over states' rights in Colorado, whereas states' rights won in Washington over conservative ideology. It just got me thinking, yeah.

Dr. Benesh:

I mean, I'd be willing to guess that in most cases, states' rights would cede authority to, or would be in the background in favor of, a conservative outcome. So I think you know, like, just like we've talked about originalism being sort of a tool to implement conservative outcomes, I think the same thing is probably true of states' rights in many circumstances, that we're really excited to give states the rights when we're confident that states are going to enact conservative policies like in the abortion case, not as excited to give states rights when we think they might enact liberal policies, like in the gun case, right?

Dr. Benesh:

So yeah, I would be surprised if it isn't the case that, more likely than not, it's the conservative thing that wins.

Shawn:

And you mentioned administrative law, which makes me think about this. This term's abortion case, the myth of pristone case that the court has agreed to hear and you know we talked, or we talked in the green room, a little bit about. Some Republicans are saying like that the court seems tone deaf and they're almost positive that the court will probably limit myth of pristone, which is FDA approved, and you had mentioned that this is perhaps, as opposed to being states' rights or conservative ideology, this might be more about administrative law, which is something you had just alluded to, and if you take that in consideration, what are perhaps your expectations?

Dr. Benesh:

Yeah, I mean, you know, administrative law is not my area of expertise, but I do think that one of the things that has defined this court. So if I was going to try to talk about what I think this court is like or about, I do think that it's about, you know, stopping the power of administrative agencies over various aspects of policy in favor of, you know, allowing the legislature to make rules and decisions about these sorts of things. So in that regard, I think it's and I guess because it also aligns with the conservative project, you know, I think there probably is a pretty strong likelihood that the court will decide that the FDA has overstepped some bounds in the exceptions that they've made to the distribution and use of the pristone.

Dr. Benesh:

So the Republicans you were talking about that, were saying that the court is tone deaf. Which Republicans are those?

Shawn:

One was Nancy Mace and the other was Lawler, and so he is from a Biden district. But Nancy Mace, she's a pretty strong conservative and she was one that voted to oust McCarthy and he has vowed to never forgive her for it. She's pretty far right, but she's been kind of hair on fire as it relates to what the court has done with abortion. But I think she's taken this from the political position.

Dr. Benesh:

So well she turns out she's a woman, right? I can't remember what I was just listening to the other day that was making this. Oh, it was a discussion about and don't you dare pull me into this discussion, but it was a discussion about one of the Republican debates and Nikki Haley's positions on abortion, and I thought it was really fascinating that their argument was that and maybe this has some analog to Roe vs Wade's original decision in the first place.

Dr. Benesh:

But some idea that this project that the conservatives have been working on so long to overturn turns out to not be a great election issue. Right that they're noticing that? Oh shoot, people really have more nuanced opinions on abortion than we thought. And outlawing all abortions and putting all the women and the doctors in jail who do them is not a popular position, right? And I think that kind of happened with Roe too, where there weren't organized pro-life organizations until Roe vs Wade right.

Dr. Benesh:

So sort of galvanized the opposition, and I think in that way Dobbs is sort of galvanizing people who support some semblance of freedom of choice and at least not criminalization of that kind of choice. So yeah, I didn't. I hadn't heard about those Republican comments, but I would be surprised if Republicans in districts that are at least potentially competitive are worrying about the mythic worst-case.

Shawn:

It's probably worth mentioning that, since we last talked, justice Sundar Day O'Connor has passed and, as we do, her legacy is being put through the ringer, both good and bad. But as it relates to you know I guess, timeliness, abortion, right, the role that she played in the Casey decision and kind of holding together a shaky majority, but then also the role that she played in the 2000 election case Bush v Gore, and so I guess it's probably worth recognizing everything that she brought in, the barriers that she broke on the court, but also how these things are. You know, what is it past? His prelude?

Dr. Benesh:

Yeah, yeah.

Dr. Hawdon:

I mean, I've been thinking about.

Dr. Benesh:

O'Connor a little bit lately. So I had checked out the biography. Is it Evan Thompson's biography first on O'Connor a long time ago, Like I got it from Interlibrary Loan.

Shawn:

So you can have it forever.

Dr. Benesh:

No, but it turns out my forever ended. So, it was overdue and they were like threatening me with a hundred dollar. Fine, so I finally returned it, but I then started reading it before I returned it.

Shawn:

Oh, I do that too.

Dr. Benesh:

I read about half of it before I had to bring it back and I have it on Reclass from my local library so I can finish it. But yeah, I've been thinking a lot about her and her legacy lately because you know she was super Republican, but you know, in that you know bygone era of Republicans right that you know we're still interested in compromise and we're still thoughtful and willing to learn and discuss things and you know this.

Dr. Benesh:

At least this portrait of her I thought was it's not a hagiography but it's you know it's flattering, but I learned a lot about her proclivity to try to engage people in conversation and try to be a uniter and a pragmatist and, I think, a court with. O'connor on, it would not have decided a case like Dobbs right.

Dr. Hawdon:

I mean Alito is no, o'connor.

Shawn:

No, no, he's not. You know we've talked about this before, but I think we just read the recent New York Times article both of us about the inter-machinations of the court as it relates to the Dobbs decision and the overturning of Roe.

Shawn:

And I could not help but when reading that try to imagine the sense of decorum and relationship. The court tries very hard to present an image of collegiality and friendship and that they're kind of above the politics and above the emotion and I just don't buy it. I have such a hard time imagining that it's just business as usual at the court. Right now I think it feels like inside that place.

Dr. Benesh:

Well, I think it's telling that Adam Liptec got a bunch of people to talk to him for that story and I think that might be the reason to suspect that things are not as they say they are. And the leak itself. I mean I know a lot of people think it was Alito that leaked it, but that leaked it in the first place. I almost called them Alito, like the strict-shrinking women, so that might have been a strategic move, but that was very jarring to anyone who was a Supreme Court watcher. Because that's not just that just doesn't happen. And we know that since the brethren was written by Woodward Armstrong all those years ago that the court is zealously guarding their confidentiality and severely punishing anyone who breaches it. So the fact that I think he said, does he say like 15 people that he talked to? That's a big number, right, and so like the fact that he was able to get that information, and I'm sure, when was this? When did they post this?

Shawn:

Well, we're recording it on December 15th and it posted today. Yeah, so it was just today, right? So?

Dr. Benesh:

I can't imagine that there's not going to be a huge backlash over this.

Shawn:

What's the likelihood that you think one of the people he talked to was justice 100%? Me too, me too. Okay, who do you think it is?

Dr. Benesh:

Who do? I think it is Kagan.

Shawn:

That's what I think too, and here's so I was trying to like figure out with the, I was trying to pick up clues and very early in the article and like there's nothing more about this. So it's clearly just a snarky comment someone made, and Neil Gorsuch signed on within 10 minutes yes, the point being he clearly was ideologically driven, didn't even read it.

Dr. Benesh:

Or the point was, this had already been drafted together.

Shawn:

He'd already read it. Yeah, yeah, yeah. But yeah, I was thinking Kagan too. There was a part of me that was like I could see Havana Really, please, like me.

Dr. Benesh:

Do you think he really likes Adam Lutte? I mean, Adam seems nice.

Shawn:

Do you get that far without realizing that a journalist is not your friend?

Dr. Benesh:

Oh gosh.

Shawn:

Well, you know, it depends on who you are right, I mean I think, and who that journalist is, I guess.

Dr. Benesh:

Yeah, and these, these justices have very interesting mental makeups. You know, like I think there's some security, like insecurity issues. Sometimes, you know, when you know someone who's insecure, it manifests in really horrible and ugly ways and oftentimes the manifestation doesn't seem like insecurity at all. Right, I mean Alito, like seems to me to be that kind of a person.

Shawn:

In all seriousness, alito actually scares me Like I think he's a scary person.

Dr. Benesh:

Say more.

Shawn:

This is just like rank speculation. I get the impression I guess I feel like this about like really dogged ideological warriors. When they have in their eye what they want, anything that gets in their way, people included, are nothing to them. Maybe I shouldn't say this about a human being without knowing him, but I just don't believe that he spent a lot of time thinking about anybody's lives and how they would be impacting when he was crafting this decision, because at minimum, the wording in that Dobs decision would read differently if he had some compassion.

Dr. Benesh:

Yeah, that's for sure, and that's, I think that's one thing that I took from the article. Two is that this group of conservative men and one woman right. Maybe you know, they read that before it was leaked and they were okay with it. You know, and I mean, I just think like, even even if you set aside the issue of whether or not you know, there's a constitutional privacy protection that extends to a woman's right to end a pregnancy. Yeah, the wording is hurtful.

Shawn:

Yeah, and almost seems, deliberately so.

Dr. Benesh:

Yeah, and. I thought you know I thought I guess Pollyanna over here that this was going to get leaked, they were going to be embarrassed and they were going to revise it so that it wasn't so acerbic.

Shawn:

You know what I thought the article actually lacked? This was another clue I was trying to pick apart. It was really sympathetic to Barrett to some degree.

Dr. Benesh:

Mm-hmm.

Shawn:

So she's the source. Well, maybe right.

Dr. Benesh:

And Barrett was without blame.

Shawn:

Blameless Barrett, as we call her, but that she, you know, didn't want to have to decide that in her first term because she didn't want it to look political or ideological, and that she rescinded her decision to even hear the case in the first place not that it mattered, given the numbers that they had. But this is where I think the article was lacking. It then never wrapped that up Like why did she sign on to the final opinion then?

Dr. Benesh:

Yeah, it would be interesting to know. I mean, I think because she believes in the underlying principle.

Shawn:

Yeah, yeah, yeah, yeah. I also thought it was like really bad decision on Robert's part to deny the dissent, reading it their dissent.

Dr. Benesh:

I didn't know he could do that. I didn't either.

Shawn:

Well, I also didn't know that they had their rules, and then they had secret rules that the public doesn't even know about. Super secret, double secret. Yeah that was weird. Is that one of those super secret rules? Because people are always like you know. The Chief Justice is, you know, first among equals. He actually has no decision making power, but he apparently does.

Dr. Benesh:

Yeah, I mean, it's not. It hasn't. Wasn't long ago that scholars only finally realized that dissents were assigned? You know that the that the most senior dissenter assigns the opinion. You know so maybe this is just something we just don't know that they have to get the Chief's permission to read a dissent, right.

Shawn:

Turns out it is some like weird ass institution Turns out. Yeah, I guess. Yeah, I'm late to the game.

Dr. Benesh:

I've been studying this institution for quite a long time.

Shawn:

Anyway, on a perhaps lighter note, what's something you're looking forward to in the new year in 2024?

Dr. Benesh:

Oh my gosh, I'm on sabbatical in the spring.

Shawn:

So do you have plans or are you? Technically you're supposed to be doing research, right?

Dr. Benesh:

Oh I'm. I'm so excited to do research because, like it's so, I'm the chair of the department, which means I do a lot of stuff for everyone else. I am a mom, which means I do a lot of stuff for everyone else. I'm on all these committees. That's trying to help the university survive, whatever it is that we're going through right now in higher education, and so that's doing a lot of work for everyone else.

Dr. Benesh:

And so I'm just really looking forward to doing what I want to do for a whole semester and, you know, for most of the summer, and so that's yeah, it's super exciting. I'm just really looking forward to getting some projects off my desk that have just been sitting around just waiting for just a little bit of attention.

Shawn:

Are you going to go into the, into your office at all?

Dr. Benesh:

I may have to, just because I you know there's software on this computer that I need. But I you know, I will probably do most of my work from my home office, which is just. I have everything I need there anyway. So and. I can make a list of which is wonderful.

Shawn:

Yeah, I'm making the most of it.

Dr. Faris:

Well and you know it's going to go in like a minute.

Dr. Benesh:

It's going to last a minute.

Dr. Faris:

Yeah.

Dr. Benesh:

I'm going to be like, oh crap, it's September and I'm back, you know. But right now it's very romantic looking forward at this long, you know, so semester and into the summer that I have to work on what I want to work on. But yeah, I know, in reality it's going to fly. What are you looking forward to in the new year?

Shawn:

That is a good question. Nothing, I hate everything. I am really worried about the election.

Dr. Benesh:

I'm not going to lie, but yeah, the election is a source of stress, for sure.

Shawn:

Honestly, I just keep thinking like, do I need to just live this up as the last free year? Cash might be assigned through work to Poland for like two and a half months in spring, which is throwing off our planning of vacation. We can't. We can't plan anything till we know what he's doing. But if he does go there, I'll go there for maybe a few weeks and we can hop over to like Germany and Sweden, but that's kind of it. We were thinking about maybe New Zealand at the end of next year, but don't tell anyone in Germany what your last name is.

Shawn:

I know I'm going with the maiden name that I like fatty has left the building.

Dr. Benesh:

Oh my gosh, you better tell people what that means.

Shawn:

Fatty or greasy, just fine.

Dr. Benesh:

It's fatty or greasy.

Shawn:

Not only is it bad, it has two horrible meanings.

Dr. Benesh:

That's fabulous.

Shawn:

All right, dr Benesh. Thanks for stopping by. Happy New Year.

Dr. Benesh:

Oh, thanks. I hope you have a great break, of whatever sort you end up engaging in.

Shawn:

Thanks, Dr Hawdon, welcome back. Thanks for being here. How are you?

Dr. Hawdon:

I'm doing well, thanks, how are you?

Shawn:

I'm well too, thank you.

Dr. Hawdon:

Good Thanks for having me.

Shawn:

Absolutely.

Shawn:

I really value your opinion and I wanted to have you back to talk about a couple of things related to political violence, and I guess the first question I have for you is related to the ebb and flow of it and where we might be on that continuum, because we're not hearing so much anymore about specific incidents of political violence in the United States, at least as much as we did during the Trump presidency and here I'm talking about things like Charlottesville, january 6th, et cetera, and I do want to distinguish between quote unquote organic political protest and violence, for instance, the violence we're seeing in the United States in response to the Gaza conflict.

Shawn:

So that's one form of political violence. What I'm actually talking about is political violence that's part of, or becoming part of, the partisan package, like Trump embracing and endorsing certain types of political violence, and I want so I want to focus on this, and after January 6th, we just haven't seen a lot of this type of partisan political violence, and I worry that we might have fallen into a sense of complacency, which is a little shocking to me, that it's almost seems like people don't really remember how terrifying January 6th was, but maybe this is no longer the threat it used to be. Do you think this is waning, or is it just a calm before the storm? How would you characterize this moment in US political violence?

Dr. Hawdon:

I think it's evolving and probably, I think you actually the better term would be the ebb and flow of it. As you said earlier, I think that the more organized showings of political violence, such as the Charlottesville rally, january 6th, things of that nature- those are definitely now.

Dr. Hawdon:

But if you think about what happened after those events, a lot of the more active organizations that were involved in organizing those events, staging those events, carrying those events off, popularizing them, such as the Proud Boys, etc. We have cracked down on them and we have disrupted their activities. So those some of the more visible groups have faded away.

Dr. Faris:

They're not as active.

Dr. Hawdon:

But I wouldn't really say political violence is waning. If you look at the number of hate groups that have been identified in the US, they've skyrocketed In 2022, they went up almost doubled from 2021. They went from 733 in 2021 to 1,125 in 2022. And now part of that was they were repressed in the pandemic, maybe, but even 1225 number is even up over the previous high of 2018.

Dr. Hawdon:

Of course, we tend to think of these hate groups and the hate crimes that are committed as not necessarily being political violence, but I think we need to understand some of this as this rise of these hate groups and such as a social movement and not really isolated incidents of bigotry and intolerance. Indeed, my work here at the Finland, While I'm in Finland on the Fulbright Finland Foundation, is focused on the international nature of a lot of these hate groups. If you look at their message, they are using the same framing. They are anti-democratic, right wing anti-democratic, and the message is that there's an organized attack on our culture and it's embodied in what you can call whether you want to call it progressivism or globalism, or wokeness or whatever and that these people need to be rooted out, and I think this is a kind of a grassroots social movement that, ironically, is kind of the internationalization of hypernationalism.

Shawn:

What makes me concerned is that, while this is perhaps grassroots, it does seem to be somewhat adopted by or embraced by, the far right, globally right, as a legitimate form of political expression, and what that means is that there isn't a bipartisan or tripartisan agreement that this is a threat to society or a threat to our governing structures or democracy. So we have one side of the political spectrum globally that benefits from this type of political violence to some degree and sees it as legitimate. So therefore they're not in the fight to eradicate it, and I guess my fear is that we don't talk about this enough as being a genuine threat on a global scale, as you said, to our democratic institutions as we know them, and that perhaps we've passed the Rubicon and we don't even know it.

Dr. Hawdon:

Yeah, I'm afraid you might be right. If we look at this, some of the political right, focusing in the US Republicans, are tapping into this grassroots social movement. People have said that Trump in 2016, his campaign left the genie out of the bottle, if you will, and kind of winks and the former winks and nods and dog whistle rhetoric that really has been used since Nixon's Southern strategy came out in the open. And I think at times this embracing of this ideology is still kind of dog whistle stuff and wink and nod, backroom deals etc. But at other times it has clearly become pretty open. The whole movement, the anti-woke movement, if you will, if you want to call it that. But the most blatant example of this has been that former President Trump's almost quoting mind conf verbatim talking about vermin and political enemies as vermin and talking about immigrants poisoning the blood of our country. This isn't hidden. This isn't a wink and a nod. This is just outright appeals to the rhetoric that is being used by these hate groups.

Shawn:

Yeah, it's so heavy. I'm trying to wrap my head around what's happening, and there's a lot of attention paid to due to the fact that the Justice Department has been prosecuting so many individuals and groups associated with specific acts of political violence, particularly a good example is January 6th, but what I'm afraid of, given the fact that this is so ideological or partisan, I guess is a better way to think about it in the United States is that what these groups and these individuals have figured out is that during Democratic administrations lay low and that in Republican administrations, the handcuffs might be off, especially if, as the Republican Party is posturing, a bunch of these folks are pardoned, and that really makes me wonder. Heading into 2024, which is an election year, maybe this is just uncharted territory, but what does that even look like? Because my guess is these groups are going to start agitating as they get a little excited at the potential of a Trump presidency, right, and I'm wondering if you've given that any thought or if there's any historical reference to that.

Dr. Hawdon:

Well, yeah, I think you're right, and I think the data bears it out that the you know you kind of lay low. But while they're laying low, it's not like they're not active at all. Right, they're still recruiting behind the scenes. They're possibly laying low in the sense that they're not involved in outright political violence like the Charlottesville rally and such, knowing that the Department of Justice, you know it is not going to tolerate it, but you know they are recruiting, they are using the tools of social media to spread their word to you know, quote unquote educate people.

Dr. Hawdon:

And yeah, I do think that the parallel, not to overuse the historical, the historic analogy, but I mean, if you look at the rise of totalitarian regimes, be it Mussolini, be it Hitler, be it Franco, the playbook is the same and we're seeing that playbook unfold. You know the undermining of the courts. I've always known, you know there's always been conspiracy theories, there's always been theories of the deep state, et cetera. You know, and things like this I mean certainly old enough to remember the 1960s and 70s, and you know that everybody on the left wing you know were talking about.

Dr. Hawdon:

You know the deep state and all of the control that they had and repressing the civil rights movement, et cetera, et cetera. And there's always been these types of theories, but I never thought I would hear it coming from the government itself, right? And of course, that's exactly what the Trump administration did and continues to do, you know, with the undermining the faith that we have in the electoral system undermining our confidence in the courts, undermining the confidence in the legal process in general.

Dr. Hawdon:

People have always questioned that, of course, but I never thought that I would hear it actually coming from the government, but that's what you know. Some of the mainline government is now doing, so I think it's uncharted territory for us, but unfortunately, we have seen where this has led in the past and it definitely worries me.

Shawn:

You want something lighter? Sure, okay, what's something you're looking forward to in the new year?

Dr. Hawdon:

Well, not the election.

Shawn:

I knew that.

Dr. Hawdon:

No, really, I think I'm just looking forward to I've been overseas for a while now and working on a Fulbright and doing research over here and some just kind of looking forward to being home with my wife again. I've really enjoyed my time here and my Fulbright experience, but my wife was only able to come for a short period, so being away from her for two months has been hard.

Dr. Hawdon:

So I'm just looking forward to being back home and seeing my wife, seeing my pets, seeing my friends. I mean, you know there is a reason I married her, so so it'll be good to see her again.

Shawn:

I get that. I had three significant trips this year and for each of them I was really excited to go, and after I wasn't gone for the same stretch of period that you were, but it was enough that after the third one, getting home, I was, like you know, I'm good with staying home for quite a while and just settling back in. Yeah, so I get it.

Dr. Hawdon:

You know, when my wife was here, we basically just made this home and that was great. That was fantastic. That was you know, but it's really not a home without her here. So it's what I'm looking forward to.

Dr. Faris:

And then, of course, once I get back.

Dr. Hawdon:

You know we'll look forward to, you know, coming back over here and seeing my friends here again, but we'd like to get home for a little while and revisit that part of my life.

Shawn:

Yeah, understood, dr Hawdon. As always, it's been a pleasure. Enjoy the holidays. Happy New Year. Same to you, thank you.

Shawn:

OK, so there you have it. We've dredged up the wreckage of 2023, examined the Supreme Court's legal bombshells, the continuing presence and threat of political violence in our American politics and the perhaps widening cracks in the foundation of American democracy. And it's some scary shit, agreed, but while it does seem incredibly dire, despair is a luxury we just can't afford. Yes, the American experiment is facing some serious challenges, but remember, challenges are what define us, what force us to adapt, to evolve. This isn't a fairy tale. This is real life, and it's messy and it's complicated and full of surprises. And there have been pleasant surprises.

Shawn:

January 6th insurrectionists have continued to be held to account, up to and including people like Rudy Giuliani and very possibly, donald Trump himself. The midterm election revealed that the shit Republicans are peddling isn't landing with the electorate, and ballot measures across the country reveal a populist that's a lot more tolerant and respectful of individual liberty than our politics might suggest. People spoke and they demanded better. These are sparks that can ignite a fire of hope and of change. So, yeah, 2024 might be a bumpy ride, but remember we've been on this ride before. We've faced dark times, overcome seemingly insurmountable obstacles, and we're still here. So let's remember that the future is not set in stone, that it's shaped by the choices we make, the actions we take, the voices we raise. Let's be the generation that doesn't just talk about democracy but lives it. Let's be the generation that mends the cracks and builds bridges and pushes back against the darkness, because, in the end, the fate of American democracy isn't something that happens to us. It's something we create and we have to continue to create.

Shawn:

So here's your homework for the new year Stay informed, stay engaged and, most importantly, don't lose hope. Let your anger fuel your activism and your fear inform your vigilance and uncertainty strengthen your resolve. This is our democracy, ours to protect, ours to nurture, ours to fight for. So go out there, make your voices heard, make your votes count and let's show the world that American democracy isn't ready to retire just yet. We've got some fight left in us. Let's make 2024 the year we turn the tide together. Happy New Year, everyone, and check back soon for another episode of Deep Dive Chat soon, folks.

Deep Dive
Challenges and Optimism for Biden's Reelection
Future of the Democratic Party Concerns
Reevaluating the Supreme Court's Direction
Conservative Ideology and States' Rights
Supreme Court Decision and Personal Plans
Current State of US Political Violence