Trolling and the Court's Leading Theocrat
By now, it is hardly surprising when we see Republicans in Congress acting like media-obsessed teenage "influencers" rather than lawmakers. Some of them seem to spend all of their time looking for "likes" and the like, with one House Republican reportedly choosing her stances on issues based on what will get her on TV. The idea that they might at some point have to do something, or be held accountable for anything, is utterly foreign to them.
And it is not merely the boisterous lower house of Congress that is in on the game. Indeed, Patient Zero in this mess is arguably Senator Ted Cruz, who was always more interested than anything else in simply getting attention with one or another ugly smear. (It is difficult to disagree with liberal TV host Chris Hayes's assessment that Cruz is more interested in being a podcaster than a senator.)
All of this is, of course, a matter of degree. After all, almost no one succeeds in politics without being willing to give interviews and so on. There are media-savvy people on the left, such as Rep. Katie Porter (who unfortunately will be leaving the House after this term, having given up her seat to engage in an ultimately unsuccessful run for the open US Senate seat in California), and Alexandria Ocasio-Cortez is undeniably good at engaging with modern media as well.
The difference, of course, is that the media hounds on the right are also shameless trolls, engaging in bad-faith misrepresentations of their opponents' views and never backing down even after being called out. After delivering her disastrously embarrassing official Republican response to the State of the Union address last month, for example, Alabama Senator Katie Britt simply refused to admit that she had engaged in what Paul Krugman smartly labeled "de facto lies."
For those who missed it, Britt tried to tie a horrific story of sex trafficking to President Biden by placing accurate statements in succession that added up to a monstrous lie. Indeed, she told a story about a real victim of trafficking but made it appear that the events happened while Biden has been President -- indeed because Biden is President. When called on her BS, she went with this: "[I]t is disgusting to try to silence the voice of telling the story of
what it is like to be sex trafficked when we know that that is one of
the things that the drug cartels are profiting most off of." Who, exactly, is trying to silence the story of sex trafficking? That story can be told -- and should be told -- without the deliberate, politically-motivated distortions.
And this is hardly limited to the Trumpy types. According to The Hill: "Sen. Mitt Romney (R-Utah) posted on the social media platform X that Britt’s delivery was 'over-the-top' and 'out of character,' just like Biden’s, but he opined 'the media overreaction to hers' and lenient response to Biden 'tells us who liberals most fear as VP nominee.'" The idea that Romney was or is a voice of honesty and decency (just like Biden's?) was always more than a bit of a stretch, but this is ridiculous.
Again, content matters. If conservatives hate it when, say, Democratic Rep. Eric Swalwell points out the lies coming from the right, they always have the option of ... wait for it ... not lying. And not engaging in sleazy innuendo. And not going beyond dogwhistles to outright racist attacks. Cruz, for example, led the opposition to now-Justice Ketanji Brown Jackson's nomination to the Supreme Court by trying to force her to defend critical race theory. Why? Jackson is not an advocate of critical race theory, but she certainly is a member of a race, is she not? And not just any race. Which is all that Cruz needed. It works like this: "You're Black. This other Black person said something about race. I'm fundraising and seeking to pump up my podcast ratings by lying about what that other Black person said. And you were on a board or something that I can connect to racial politics. Now defend yourself, you anti-White racist!"
The fever has spread. The upper house is also the home of Lousiana's Senator John Neely Kennedy, with his exaggerated (and obviously fake) Foghorn Leghorn persona. Recently, he tried to tie a Muslim-American judicial appointee (Adeel Mangi) to an organization that (the senator insisted) tries to get people to "hate Israel, to hate America, and to support global terrorism," and he called the nominee an "antisemite" based on no evidence. In the confirmation hearing, Kennedy ominously announced that the nominee was on the board of a group at Rutgers Law School that had invited bad people to speak. Mangi responded that he was on an advisory board, but Kennedy snarked back by asking if there are any boards that do not give advice. When Mangi noted that there are boards of directors that, you know, do things, whereas boards of advisors can only advise, Kennedy merely sneered and repeated what he surely thought was a clever line.
But the whole point of the morality play was to say that the event in question (which Mangi said he had never heard of before that hearing) was held on September 11, 2021, leading Kennedy to ask incredulously if that "is how you celebrate 9/11." This must have infuriated Cruz, who had merely gone for the low-hanging fruit by asking the Muslim nominee whether he supported Hamas. I wonder whether Cruz would ask, say, a Swedish-American nominee whether she supports Hamas. (No, I am lying. I do not wonder about that at all.)
Not too many years ago, this kind of slimy stuff was outsourced to swift-boat AstroTurf organizations. Now, it is all over the House and the Senate. When Trump was in the White House, it was a sine qua non of day-to-day life in the Executive Branch as well.
What about the Supreme Court? Antonin Scalia had an acid tongue ("pure applesauce," "jiggery-pokery"), and he did his share of trolling as well (once responding to a law student's question about Bush v. Gore by shouting, "Get over it!"). Even so, his most eager pupil has taken it to the level of online trolling, and he is doing it in-house.
In the oral argument last week for the mifepristone case, Alito had two moments more worthy of a high school bully than a grownup with unreviewable power. Alito mused at one point: "I gather your injury is that you think you're going to sell more if the restrictions that previously were in place were lifted?" When the drug manufacturer's lawyer agreed, Alito shot back: "So you're going to make more money?" As Amy Davidson Sorkin put it in The New Yorker, Alito was clearly "suggesting that the company was just a greedy abortion-pushing profiteer."
But the low point, to my mind, was when Alito asked this: "During the questioning of the Solicitor General, the statement was made that no court has ever previously second-guessed the FDA's judgment about access to --to a drug, right? It's never second-guessed that?" Again, the lawyer agreed, at which point Alito said this: "Do you think the FDA is infallible?"
Note that the problem here is not the kind of bigoted ugliness that Cruz and Kennedy habitually engage in, but it is pure trolling nonetheless. It is merely an updated version of the infamous question, hurled at those who argued against the 2003 invasion of Iraq: "Why do you hate America?" There is no content, and the question is deliberately dishonest. No one said that the FDA is infallible, but Alito went for the most ridiculous straw man that he could imagine. That Justice Jackson later turned that whole line of attack around (pointing out that the courts are a heck of a lot more fallible than the Food and Drug Administration when it comes to understanding drugs) was nicely done, but it should not have been necessary.
We have finally reached the point where one cannot tell whether a snide remark was made in a Twitter post, on a TV show, in House or Senate hearings, or in the Supreme Court itself. Will we hear Alito or his ideological colleagues sounding like Trump's media posts -- asking about, say, "deranged Jack Smith" -- when the Court (finally) gets around to hearing the presidential immunity case later this month? Why not? Who could stop them?