Five Justices Did This Because They Could

Emergency appeals have become the tool of choice for the conservative movement.

The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn’t even wait for oral arguments.

Instead, in the middle of the night, five of the high court’s conservatives issued a brief, unsigned order allowing a Texas law that bans abortion at six weeks. The law also gives private citizens the authority to sue anyone who “knowingly … aids or abets” an abortion and rewards them with $10,000 if successful, essentially placing a bounty on anyone wishing to end a pregnancy, and anyone who might help them. Texas is now rewarding residents who snitch to the state on the most intimate details of other people’s lives.

“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” Justice Sonia Sotomayor wrote in her dissent. “​​The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

Also remarkable was that the Supreme Court acted through its “shadow docket,” the decisions the justices make regarding emergency appeals such as death-penalty cases. Under normal procedure, cases take time to work their way through the lower courts, and are received at the Supreme Court with extensive records, briefs, and oral arguments. Ideally, this allows the justices to ensure that their hugely consequential decisions are properly informed and made as carefully as possible, weighing all the relevant legal and constitutional issues. But there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that. The shadow docket, though, now resembles a venue where the conservative legal movement can get speedy service from its friends on the Court.

Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.

“The term shadow is meant to evoke the understanding that what the Court is doing is not the way that decision making on an ordinary merits docket would happen,” says Melissa Murray, a law professor at NYU who clerked for Sotomayor while she was a federal judge. “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.”

The shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docketcounts at least 41 requests foremergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.

“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck told me. “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.”

Under Trump, the justices allowed policies such as the administration’s travel ban targeted at mostly Muslim nations, its prohibition against trans people serving in the military, and its restrictions on asylum to go into effect. Under Biden, they have barred the administration’s attempt to prevent evictions because of the coronavirus pandemic and accepted a lower-court ruling demanding that the White House reimpose the controversial Trump-era “Remain in Mexico” policy, which forced migrants into “precarious conditions in dangerous Mexican border cities where thousands became victims of kidnappings, rapes and extortion,” according to The Washington Post. The decision compels the Biden administration to renegotiate an agreement with a foreign country reached during a prior administration; deference to the president’s constitutional authority to set foreign policy, which the justices had memorably cited in Trump-era cases, was suddenly absent.

“What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.” Having a conservative-dominated tribunal determine such questions, however, is an ideal arrangement for a party that has not won a majority of the votes in a presidential election since Tobey Maguire was Spider-Man, and that sees the popular majorities that vote against it as composed of illegitimate semi-citizens who have no right to govern.

The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.

Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.

This ruling is less a description of a complex legal challenge than a road mapAs Mary Ziegler writes, the Texas law was strategically designed to evade legal restrictions, and the majority read the script that was handed to it. Republican-run legislatures now know that they can pass such laws and the Supreme Court will pretend to be unable to block them.

Among the Republican appointees, only Chief Justice John Roberts had enough respect for the right’s purported doctrines of judicial minimalism to vote to wait for the case to reach the high court through normal procedural channels. Ironically, though, the unsigned majority decision reflects a careful study of Roberts’s years of successfully managing the Court’s reputation. The decision does not say “Roe is hereby overruled,” but it tells states exactly how they can effectively ban abortion if they want to. In that, it echoes Roberts’s own tendency to hide his preferred outcomes behind legal technicalities, the better to mime fidelity to constitutional principle.

“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue,” Roberts wrote in his dissent. But because five justices allowed the law to go into effect—and by implication, laws in any other state that wishes to emulate Texas—Roe has been neutralized. The only question is whether that decision is temporary, and whether the Court will eventually enact any restraints on the particular legal scheme Texas has pioneered.

“I don’t think those in the reproductive-rights community who are sounding the alarm that [the Court] really effectively overruled Roe in Texas are being hyperbolic,” Murray told me yesterday, prior to the Court’s written opinion. “The fact that the Supreme Court of the United States allows a law that patently contradicts its own statements about the right to an abortion to go into effect is essentially the Court signaling that it does not care about this right and it does not think this right should exist.”

Neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait. Thanks to the shadow docket, they didn’t have to. Five conservative justices invalidated the constitutional right to an abortion simply because they could, because they felt like it, and because they don’t believe anyone can stop them.

Adam Serwer is a staff writer at The Atlantic, where he covers politics.

The Story of the Seven Dwarfs Mining Inc: | How the Coronavirus Masked the Corporate Debt Bubble

Disney’s Seven Dwarfs team up to tell the story of corporate America (2012-2020)

by Tim Langeman 2233 words (17 min read)

Introduction

Before the coronavirus, a false narrative arose that the economy was healthy, as measured by:

  • growth in the stock market and a
  • reduction in the unemployment rate 

when in fact the recovery from the 2008 financial crisis was weak and the facade of strength was masked by low-interest rates which enabled governments, corporations, and individuals to achieve the illusion of prosperity through increased borrowing.1

Wall Street Bubbles Cartoon, 1901
1901 Cartoon depicting JP Morgan as Bull

But there is more to the economy than the stock market and unemployment rate. The bond market is larger and “smarter” than the stock market. When assessing the pre-coronavirus economy, one must also take into account the stagnant profits2 corporations disguised by borrowing in the bond market to fund purchases of their own stock, artificially inflating the stock market.

Like an Injured Athlete taking Pain Killers

The US economy was like a professional football player who had been “playing hurt” for many years.

Brandon Scherff Injury: Falcons at Redskins 11/04/18
Brandon Scherff Injury, Nov 4, 2018
Keith Allison Sports Photos (CC BY-SA 2.0)

The economy used debt like the football player uses pain killers.  The debt masked the economy’s problems3 and allow it to perform at a higher level than otherwise would have been possible had pain-killers not dampened the brain’s ability to perceive reality.  But unfortunately, an economy is not like an athlete in that it can’t retire at the end of a 15-year career.

Featuring: The Seven Dwarfs

The story I’m about to tell is intended to illustrate how corporations borrowed money and then used that money to buy their own stock, inflating the stock price.4  In finance jargon, this is called “leveraged stock buybacks”.5  Corporations have used stock buybacks as a major strategy to boost their share price but many corporations didn’t have enough profits to buy back their stock because the overall level of (pre-tax) corporate profits has been flat since 2012.6.  While some companies may have been able to legitimately afford to buy their own stock with real profits, over 50% of those buybacks were done using borrowed money.

In fact, if you look at who had been the buyer of most of the stock purchases in 2018 and 2019, it had mostly been the companies themselves purchasing their own stock, not pension funds, individuals, or hedge funds.

I illustrate how this market manipulation works using a fairy tale featuring the seven dwarfs and their mining company “7 Dwarfs Mining, Inc.” Early in the story, the dwarfs seemed to have discovered an easy way of making money until an unforeseen emergency struck and disrupted their carefully laid plans.

It is commonly known that emergencies reveal.

This story illustrates what emergencies can conceal.

The Founding Members:

Grumpy Dwarf
Grumpy Dwarf

Once upon a time, the 7 Dwarfs Mining company was founded in a small Forest Kingdom town by Seven dwarfs:7

  1. Dopey,
  2. Doc,
  3. Bashful,
  4. Happy,
  5. Grumpy,
  6. Sleepy, and
  7. Sneezy

After a number of years in business together, the mining company was valued at $7 million8 and generated $700,000 in profit per year, which they split 7 ways.9

Assets # of Shares Yearly Profit Profit per Share Debt
$7 million 7 $700,000 $100,000 $0

Continue reading


  1. Finance-types refer to borrowing as “leverage” because, like a ‘lever’, it amplifies your effort.

  2. You might wonder why this Federal Reserve chart looks different than upward sloping graphs you are used to.  The first reason is that this graph uses pre-tax figures that do not include the boost that corporate tax cuts gave to the stock market.  The other reason is that this graph is based on total profits, rather than earnings per share.  In the rest of this article, you will learn how corporate debt artificially inflated earnings per share.

  3. The fallout from the prior 2008 financial crisis was not dealt with.  The government bailed out the system and assumed the debt.  Most Americans’ wages had stagnated and healthcare and education expenses have gone up dramatically.  In order to compensate for week customer demand, companies had begun to borrow money and buy back their own stock.  Even with a deficit of $1 trillion/year, pre-coronavirus, the economy grew at a rate of 2.1% and was projected to fall to 1.6% by 2024.

  4. Now with the coronavirus crisis, the federal reserve is buying some of that debt, as well as allowing corporations to issue additional debt at artificial prices.

  5. Leveraged” is just a fancy term used to indicate that financial activity is amplified by borrowing.

  6. Pre-tax Corporate profits peaked in 2014 and have been roughly flat since 2012.  The perception of growth is mostly due to the additional debt (share buybacks) and the  2017 tax cuts (federal government debt).

  7. There are many variations of the Seven Dwarfs’ Names. I’m going with the 1937 Snow White and the Seven Dwarfs animated musical fantasy film produced by Walt Disney Productions

  8. The value of all the stock is equal to the value of all the company’s assets minus its liabilities.

    ( total stock shares = number of shares x share price)

  9. I picked round numbers for this. If you want to help me improve the numbers, see the excel doc in the footer and edit it.

source:
Read Original Source"); ?>

He Has 17,700 Bottles of Hand Sanitizer and Nowhere to Sell Them

On March 1, the day after the first coronavirus death in the United States was announced, brothers Matt and Noah Colvin set out in a silver S.U.V. to pick up some hand sanitizer. Driving around Chattanooga, Tenn., they hit a Dollar Tree, then a Walmart, a Staples and a Home Depot. At each store, they cleaned out the shelves.

Over the next three days, Noah Colvin took a 1,300-mile road trip across Tennessee and into Kentucky, filling a U-Haul truck with thousands of bottles of hand sanitizer and thousands of packs of antibacterial wipes, mostly from “little hole-in-the-wall dollar stores in the backwoods,” his brother said. “The major metro areas were cleaned out.”

Matt Colvin stayed home near Chattanooga, preparing for pallets of even more wipes and sanitizer he had ordered, and starting to list them on Amazon. Mr. Colvin said he had posted 300 bottles of hand sanitizer and immediately sold them all for between $8 and $70 each, multiples higher than what he had bought them for. To him, “it was crazy money.” To many others, it was profiteering from a pandemic.

Now, while millions of people across the country search in vain for hand sanitizer to protect themselves from the spread of the coronavirus, Mr. Colvin is sitting on 17,700 bottles of the stuff with little idea where to sell them.

“It’s been a huge amount of whiplash,” he said. “From being in a situation where what I’ve got coming and going could potentially put my family in a really good place financially to ‘What the heck am I going to do with all of this?’”

Mr. Colvin is one of probably thousands of sellers who have amassed stockpiles of hand sanitizer and crucial respirator masks that many hospitals are now rationing, according to interviews with eight Amazon sellers and posts in private Facebook and Telegram groups from dozens more. Amazon said it had recently removed hundreds of thousands of listings and suspended thousands of sellers’ accounts for price gouging related to the coronavirus.

Amazon, eBay, Walmart and other online-commerce platforms are trying to stop their sellers from making excessive profits from a public health crisis. While the companies aimed to discourage people from hoarding such products and jacking up their prices, many sellers had already cleared out their local stores and started selling the goods online.

Now both the physical and digital shelves are nearly empty.

Mikeala Kozlowski, a nurse in Dudley, Mass., has been searching for hand sanitizer since before she gave birth to her first child, Nora, on March 5. When she searched stores, which were sold out, she skipped getting gas to avoid handling the pump. And when she checked Amazon, she couldn’t find it for less than $50.

“You’re being selfish, hoarding resources for your own personal gain,” she said of the sellers.

Sites like Amazon and eBay have given rise to a growing industry of independent sellers who snatch up discounted or hard-to-find items in stores to post online and sell around the world.

These sellers call it retail arbitrage, a 21st-century career that has adults buying up everything from limited-run cereals to Fingerling Monkeys, a once hot toy. The bargain hunters look for anything they can sell at a sharp markup. In recent weeks, they found perhaps their biggest opportunity: a pandemic.

As they watched the list of Amazon’s most popular searches crowd with terms like “Purell,” “N95 mask” and “Clorox wipes,” sellers said, they did what they had learned to do: Suck up supply and sell it for what the market would bear.

Initially, the strategy worked. For several weeks, prices soared for some of the top results to searches for sanitizer, masks and wipes on Amazon, according to a New York Times analysis of historical prices from Jungle Scout, which tracks data for Amazon sellers. The data shows that both Amazon and third-party sellers like Mr. Colvin increased their prices, which then mostly dropped when Amazon took action against price gouging this month.

Average daily prices from Jan. 1 through March 7 for some of the most popular products returned in keyword searches on Amazon.com. | Source: Jungle Scout | By Ella Koeze

At the high prices, people still bought the products en masse, and Amazon took a cut of roughly 15 percent and eBay roughly 10 percent, depending on the price and the seller.

Then the companies, pressured by growing criticism from regulators and customers, cracked down. After the measures last week, Amazon went further on Wednesday, restricting sales of any coronavirus-related products from certain sellers.

“Price gouging is a clear violation of our policies, unethical, and in some areas, illegal,” Amazon said in a statement. “In addition to terminating these third party accounts, we welcome the opportunity to work directly with states attorneys general to prosecute bad actors.”

Mr. Colvin, 36, a former Air Force technical sergeant, said he started selling on Amazon in 2015, developing it into a six-figure career by selling Nike shoes and pet toys, and by following trends.

In early February, as headlines announced the coronavirus’s spread in China, Mr. Colvin spotted a chance to capitalize. A nearby liquidation firm was selling 2,000 “pandemic packs,” leftovers from a defunct company. Each came with 50 face masks, four small bottles of hand sanitizer and a thermometer. The price was $5 a pack. Mr. Colvin haggled it to $3.50 and bought them all.

Credit…Doug Strickland for The New York Times

He quickly sold all 2,000 of the 50-packs of masks on eBay, pricing them from $40 to $50 each, and sometimes higher. He declined to disclose his profit on the record but said it was substantial.

The success stoked his appetite. When he saw the panicked public starting to pounce on sanitizer and wipes, he and his brother set out to stock up.

Elsewhere in the country, other Amazon sellers were doing the same.

Chris Anderson, an Amazon seller in central Pennsylvania, said he and a friend had driven around Ohio, buying about 10,000 masks from stores. He used coupons to buy packs of 10 for around $15 each and resold them for $40 to $50. After Amazon’s cut and other costs, he estimates, he made a $25,000 profit.

Mr. Anderson is now holding 500 packs of antibacterial wipes after Amazon blocked him from selling them for $19 each, up from $16 weeks earlier. He bought the packs for $3 each.

Eric, a truck driver from Ohio who spoke on the condition that his surname not be published because he feared Amazon would retaliate, said he had also collected about 10,000 masks at stores. He bought each 10-pack for about $20 and sold most for roughly $80 each, though some he priced at $125.

“Even at $125 a box, they were selling almost instantly,” he said. “It was mind-blowing as far as what you could charge.” He estimates he made $35,000 to $40,000 in profit.

Now he has 1,000 more masks on order, but he’s not sure what to do with them. He said Amazon had been vague about what constituted price gouging, scaring away sellers who don’t want to risk losing their ability to sell on its site.

To regulators and many others, the sellers are sitting on a stockpile of medical supplies during a pandemic. The attorney general’s offices in California, Washington and New York are all investigating price gouging related to the coronavirus. California’s price-gouging law bars sellers from increasing prices by more than 10 percent after officials declare an emergency. New York’s law prohibits sellers from charging an “unconscionably excessive price” during emergencies.

An official at the Washington attorney general’s office said the agency believed it could apply the state’s consumer-protection law to sue platforms or sellers, even if they aren’t in Washington, as long as they were trying to sell to Washington residents.

Credit…Doug Strickland for The New York Times

Mr. Colvin does not believe he was price gouging. While he charged $20 on Amazon for two bottles of Purell that retail for $1 each, he said people forget that his price includes his labor, Amazon’s fees and about $10 in shipping. (Alcohol-based sanitizer is pricey to ship because officials consider it a hazardous material.)

Current price-gouging laws “are not built for today’s day and age,” Mr. Colvin said. “They’re built for Billy Bob’s gas station doubling the amount he charges for gas during a hurricane.”

He added, “Just because it cost me $2 in the store doesn’t mean it’s not going to cost me $16 to get it to your door.”

But what about the morality of hoarding products that can prevent the spread of the virus, just to turn a profit?

Mr. Colvin said he was simply fixing “inefficiencies in the marketplace.” Some areas of the country need these products more than others, and he’s helping send the supply toward the demand.

“There’s a crushing overwhelming demand in certain cities right now,” he said. “The Dollar General in the middle of nowhere outside of Lexington, Ky., doesn’t have that.”

He thought about it more. “I honestly feel like it’s a public service,” he added. “I’m being paid for my public service.”

As for his stockpile, Mr. Colvin said he would now probably try to sell it locally. “If I can make a slight profit, that’s fine,” he said. “But I’m not looking to be in a situation where I make the front page of the news for being that guy who hoarded 20,000 bottles of sanitizer that I’m selling for 20 times what they cost me.”

After The Times published this article on Saturday morning, Mr. Colvin said he was exploring ways to donate all the supplies.

American Paganism

It’s not what the Religious Right thinks it is.

Claims of moral decline are a perennial feature of conservative rhetoric. But in recent years, pro-Trump Christians have emphasized a new reason to be afraid. The United States, they say, is devolving into such wanton “paganism” that the country may not survive. The true America awaits rescue by the Christian faithful, and in such an existential struggle, nearly any means are justified—even reelecting a morally abhorrent president.

Examples of this rhetoric are not in short supply, among pundits and even in more scholarly work. In an essay praising Donald Trump’s “animal instinct” for “order” and “social cohesion,” Sohrab Ahmari opposed an America of “traditional Christianity” to one of “libertine ways and paganized ideology.” These are our only choices, he insisted. Between such incompatible enemies, there can be only “war and enmity,” so true believers should be ready to sacrifice civility in the battles ahead to reconquer the public squareRod Dreher has speculated that Trump, while unpalatable, could be a divine emissary holding back the horrors of Christian persecution, like the biblical figure of He Who Delays the Antichrist, an implicit nod to old pagan enemies. “If Christians like me vote for Trump in 2020,” Dreher warns, “it is only because of his role as katechon in restraining what is far worse.” Though in a calmer tone, Ross Douthat entertained similar ideas in his column “The Return of Paganism,” wondering if the pantheist tendencies in American civil religion could morph into a neo-paganism hostile to Christian faith.

Douthat cites a recent book by law professor Steven D. Smith, Pagans & Christians in the City: Culture Wars from the Tiber to the Potomac. According to Smith, what we know as “secularismis actually ancient paganism in modern guise. Since paganism is inherently anti-Christian, this means Christians should oppose both secular politics and secular universities at any cost. They are not fighting against a neutral arbiter, but against the wiles of pagan Rome redivivus, a strain of this-worldly sexualized spirituality nearly eradicated by Christianity, but now mutated and all the more lethal.

Smith is only the most recent Christian author to invoke the specter of paganism. R. R. Reno, the editor of First Things, wrote Resurrecting the Idea of a Christian Society on the eve of the 2016 election, apparently anticipating a Clinton victory. The book’s title alludes to T. S. Eliot’s 1938 essay on “The Idea of a Christian Society,” in which Eliot condemns the rise of “modern paganism.” Reno told his readers to view 2016 in light of 1938. “Would the West seek a Christian future or a pagan one?” he asked. “We face a similar decision today. Will we seek to live in accord with the idea of a Christian society, or will we accept the tutelage of a pagan society?” Yuval Levin called Reno’s book a “call to arms against a postmodern paganism.”

This charge of looming paganism exerts a twofold political function. First, it

  1. rationalizes Trumpism, casting our situation as a state of emergency that threatens the survival of U.S. Christians.
  2. Second, the sacrilege of pagan religion prevents Trump’s supporters from indulging in political moderation by making that seem like a form of apostasy. It’s probably not a coincidence that “paganism” is on the rise just as Christian conservatives decide whether to support the current administration in an election year. It is challenging to explain how Trump’s policies are Christian. It is far easier to label his opponents as pagans, and thus align the president with Christianity by default. But there are fundamental problems with the conservative narrative of a resurgent paganism.

In the first place, the term “paganism” only works in this maneuver because it is vague and perspectival. It always has been, ever since Christians invented it. Ancient Christians stuck the name on those who continued the traditional rites of Greco-Roman religion rather than adopt the true faith. Indeed the largely urban Christians meant it as a mild pejorative for the rural country bumpkins, the pagani, who lived far from imperial centers and persisted in their benighted worship of the old gods. In our terms, the first “pagans” lived in flyover country and clung to their traditional religion. 

Since “pagan” has come to mean “un-Christian,” every invocation of “pagan” brings with it an implicit understanding of “Christian.” The meaning of the former is parasitic on the latter. Misunderstanding the essence of paganism, therefore, also means misunderstanding the demands of Christianity, and vice versa.

More left-leaning Christians might well agree with Smith and Reno in one sense: there is indeed an ascendant paganism afoot in our country today. It threatens the social and moral fabric of American public life and contends directly against the voice of Christian truth. One can brook no compromise in resisting it. The difference comes in how that paganism is defined. The debate is not whether paganism is real, but where it lives, how it appears, and what it does. If conservatives have mistaken its location, they might be training their weapons in the wrong direction.

Much hangs, then, on accurately discerning the meaning of “modern paganism.” Let us consider three proposals: Steven Smith’s recent version, T. S. Eliot’s original version, and another timely version from First Things.

Christians were the most conspicuous defenders of divine immanence in the ancient world. It was pagans who derided Christians for violating the self-evident truths of divine transcendence.

Steven Smith suggests that secularism is not a neutral space, but conceals its own religious identity, which is essentially pagan. It venerates the sacred within the natural world, knows only the cycle of birth and death, and thus celebrates a libertine sexuality. As opposed to Abrahamic religions that affirm the “transcendent sacred,” paganisms old and new prefer the “immanent sacred.” Smith delves into the emergence of Christians in the Roman Empire and vividly evokes the oddity of Christianity in the ancient world, heeding the scholarship of Peter Brown, Jan Assmann, and Kyle Harper (but Edward Gibbon most of all). Smith then applies his ancient model to American constitutional law and finds it confirms conservative positions on religious freedom, public symbols, and sexual norms.

But there are serious problems with Smith’s argument. Since the 1970s, scholars of religion have largely retired the vague categories formerly used to organize speculation about comparative religions—sacred and secular, immanent and transcendent, holy and profane, this-worldly and other-worldly. Major religious traditions are massive and multifarious in the ways they sustain rituals, ethics, and beliefs. Their communities cut across languages, continents, empires, and epochs, teeming with exceptions and discontinuities. The blunt tools applied by Smith are simply not up to the task of uncovering the essence of one religion, let alone two or three, and they are certainly not able to trace the notoriously complicated history of the “secular.”

For the sake of argument, though, let us grant Smith his chosen terms, and even focus on his central claim, that Christianity can lead the way in challenging modern secularity, since it insists on the “transcendent sacred” in a way that secular paganism does not. Smith’s proposal rests upon a fundamental analogy: paganism is to Christianity as immanence is to transcendence. Christians pray to the God beyond the world; pagans encounter divinity inside the weft of nature.

Even a cursory knowledge of Christianity is enough to refute this analogy. It is true that Judaism teaches the absolute transcendence of the one God, as do Islamic theologians today, and as did Neoplatonist pagan philosophers in antiquity who sought a divine One beyond every thought, word, and image. By contrast, orthodox Christians claim that God arrived and now eternally resides within the fabric of nature, as the Creator enters into creation in the body of Jesus Christ. To cite Smith’s definition of “paganism,” it is Christianity, in fact, that “refers to a religious orientation that locates the sacred within this world.” The Christian belief in the Incarnation is nothing if not a belief in the “immanent sacred.”

The new Christian movement distinguished itself from Greek philosophy, Roman cults, and Jewish faith alike by affirming an extensive and peculiar list of divine incursions into immanence: the Incarnation of God in the body of Jesus; Anne’s immaculate conception of Mary; Mary’s virginal conception and vaginal birth of the Son of God, making her Theotokos; the real flesh of Jesus suffering on the cross, against the Gnostics (Tertullian); the real presence of Jesus in the Eucharistic bread and wine, also against the Gnostics; the Resurrection of the body after death; the bodily assumption of Mary; the martyrdom of the body as bloody birth into heaven (Perpetua) or as the grinding of flesh into bread (Ignatius of Antioch); the church birthed through the bleeding side wound of a dying Jesus; the church as maternal breast suckling the Christian with milk; the union of Christ and Christians as the exemplar of which sexual union is the image (Ephesians 5, Origen of Alexandria). Above all, the scandalous immanence that might have sounded pagan to Jesus’s disciples: “Unless you eat the flesh of the Son of Man and drink his blood, you do not have life within you” (John 6). The enemy of these traditional Christian teachings is not sacred immanence, but rather a gnosticism that dematerializes and disembodies the real presence of God within creation.

The radically immanent sacred of Christians scandalized the Romans. As Ramsay MacMullen observes, Christians worshipping a new transcendent deity would have passed unremarked. But the Christian belief that Jesus was neither prophet nor sage but a fleshly God would have been mocked by pagan intellectuals as a risible error. The late New Testament scholar Larry Hurtado writes: “In the philosophical traditions, an ultimate and radically transcendent deity was often postulated, but you did not typically engage that transcendent deity directly.… But there was a still more unusual and, in the eyes of pagan sophisticates, outlandish Christian notion: the one, true, august God who transcended all things and had no need of anything, nevertheless, had deigned to create this world and, a still more remarkable notion, also now actively sought the redemption and reconciliation of individuals.” For pagan intellectuals, Hurtado concludes, “all this was, quite simply, preposterous.”

For instance, in his work On the True Doctrine (178 CE), the pagan philosopher Celsus is ready to accept that God exists, creates all things, and transcends nature. But in shades of Sam Harris or Richard Dawkins, Celsus laughs away the claim that God was incarnated in Jesus, or that the body could be resurrected. “I mean, what sort of body is it that could return to its original nature or become the same as it was before it rotted away?” he mocks. “And of course they have no reply for this one, and as in most cases where there is no reply they take cover by saying ‘Nothing is impossible with God.’ A brilliant answer indeed! But the fact is, God cannot do what is contrary to nature.”

Christian philosophers saw the divide similarly. Tertullian admits that pagan philosophers might even discern that God exists by their own lights. But they always miss that God descended into a virgin and was made flesh in her womb. Augustine reports that he learned from the pagan philosopher Plotinus that the Logos was transcendent—but only Christians taught him how the Logos embraced the human body in all of its weakness and vulnerability, and its awful exposure to the whims of imperial violence.

To put it bluntly: paganism cannot simply mean divine immanence. On the contrary, Christians were the most conspicuous defenders of that principle in the ancient world. It was pagans who derided Christians for violating the self-evident truths of divine transcendence.

The resemblances between the modern paganism feared by T.S. Eliot in 1938 and conservative politics in 2020 are uncanny.

A better starting point for defining “paganism” is T. S. Eliot’s essay “The Idea of a Christian Society,” written in the dark days of 1938, where he proposes that the greatest enemy of modern Christianity is “modern paganism.” Reno and Smith alike summon Eliot as a sober authority in perilous times, but neither presents Eliot’s own account of the term in question. So how did Eliot define paganism? It’s important to stay as close as possible to his own words.

First, Eliot says paganism embraces an authoritarian politics that confuses religion and nationhood. The “distinguishing mark” of a Christian society, Eliot writes, is its productive “tension” between church and state, but pagan society seeks to “fuse” them. Pagan culture “de-Christianises” individuals gradually and unwittingly, as authoritarianism creeps in. Soon, he warns, one’s hymns are no longer to God alone, but also to the dear leader.

Second, Eliot says that modern paganism incites ecological destruction. The Christian lives in harmony with nature; the pagan destroys public resources for private profit. “Unregulated industrialism” and “the exhaustion of natural resources,” writes Eliot, lead to “the exploitation of the earth, on a vast scale.” In a formulation that strikingly anticipates Laudato si’, he puts it succinctly: “A wrong attitude towards nature implies, somewhere, a wrong attitude towards God.

Third, modern paganism imposes a puritanical public morality. It promotes, in Eliot’s words, “regimentation and conformity, without respect for the needs of the individual soul” and “the puritanism of a hygienic morality in the interest of efficiency.” According to Eliot, in fact, modern paganism will even attempt to elevate the status of Christian identity in society. But paganism embraces Christianity not because it’s true, but because it consolidates the nation and discourages dissent. He notes that authoritarians have always celebrated public morality. They want, in a way, more morality, even if their priorities are haphazardly formulated. Eliot warns that such a moralistic Christianity is not only a perversion of the faith: “It is not enthusiasm, but dogma, that differentiates a Christian from a pagan society.” Such versions of Christianity might even “engender nothing better than a disguised and peculiarly sanctimonious nationalism, accelerating our progress toward the paganism which we say we abhor.”

The resemblances between the modern paganism feared by Eliot in 1938 and conservative politics in 2020 are uncanny. The “paganism” that future Christians will need to identify and resist, he warned, will appear as

  • unrestrained capitalist greed; as
  • authoritarianism seeking to weaken democratic norms; as
  • callous environmental degradation; as a
  • superficial Christian moralism seeking to fuse church and state; and as a
  • petty “sanctimonious nationalism.” 

In the poignant final paragraph of his essay, Eliot confesses that the churning political surprises of the 1930s had left him shaken, not only because of the events themselves, but in the revelation of his own country’s moral poverty. In the face of Britain’s failure to mount an adequate response to modern pagan violence, Eliot felt a justified “humiliation” that demanded of him “personal contrition” along with “repentance, and amendment.” He felt “deeply implicated and responsible” and began to question his country’s frequent claims to moral authority. When Eliot enjoins his readers to fight against modern paganism, it is specifically because its brew of authoritarianism and capitalism were already beginning to charm Christian intellectuals who should know better. Eliot’s final sentences prick the conscience today:

We could not match conviction with conviction, we had no ideas with which we could either meet or oppose the ideas opposed to us. Was our society, which had always been so assured of its superiority and rectitude, so confident of its unexamined premises, assembled round anything more permanent than a congeries of banks, insurance companies and industries, and had it any beliefs more essential than a belief in compound interest and the maintenance of dividends? Such thoughts as these formed the starting point, and must remain the excuse, for saying what I have to say.

The paganism we should fear is not secularism, sacred immanence, or pantheist naturalism. It is power celebrating its violence, perceiving the world empty of everything save the contest of will.

But there was at least one other account of paganism in the pages of First Things as Trump campaigned for the presidency—this time from Matthew Schmitz, an editor at the magazine. Over the summer of 2016, Schmitz displayed an admirable prescience while Christian conservatives were still hesitating to endorse the eventual Republican nominee. The “faith taught by Christ,” he wrote, “is a religion of losers. To the weak and humble, it offers a stripped and humiliated Lord.… In Trump, it [Christian faith] has curdled into pagan disdain.”

Schmitz’s analyses from April and August of 2016 really must be considered at length, given where they were published. Take this representative passage:

At a campaign event in Iowa, Trump shocked the audience by saying that he had never asked God for forgiveness. All his other disturbing statements—his attacks on every vulnerable group—are made intelligible by this one…. Human frailty, dependency, and sinfulness cannot be acknowledged; they must be overcome. This opens up the possibility of great cruelty toward those who cannot wish themselves into being winners. A man who need not ask forgiveness need never forgive others. He does not realize his own weakness, and so he mocks and reviles every sign of weakness in his ­fellow men.

And here’s another:

In his contempt for losers, he [Trump] embodies one of the most unchristian ideals ever advanced in American politics. With a unique consistency and vehemence, he expresses his hatred of weakness. He ridicules the disabled, attacks women, and defends abortionists. This is the opposite of Christianity, which puts the weak first and exalts every loser…. Liberalism, much as I hate it, has preserved this Christian inheritance. The GOP before Trump, despite all its contempt for the 47 percent, was leavened by the influence of sincere Christians and so was never so sneering. Trump is an altogether more pagan figure.

By 2019, however, in the wake of the midterm battles over immigration and the mythic “caravan” of refugees at the southern border, Schmitz joined others to cheer on the “new nationalism” that Trump promoted at his rallies. Within a few months, Schmitz had decided that Christianity and liberalism could never be reconciled, since modern society—wait for it—had become paganized. “The Church,” he now saw, “is at odds with an increasingly pagan culture.”

If there was an ancient paganism of sacred immanence, it was soon outstripped by the more radical immanence of Christians in their claims of an Incarnation, a Resurrection, and above all the enduring food of the Eucharist. In every Mass the priest washes his hands in imitation of the pagan Pilate, but now as an act of humility and celebration. The  Catholic repeats as her own the words of the pagan centurion—Lord, I am not worthy—but now as an intimate prayer on the threshold of Communion. That version of paganism was overtaken and dissolved from within by the Christian sacralization of the body.

But there is another paganism that has survived into the present, and has emerged so vividly in contemporary politics that even First Things in 2016 could not miss it. This is not the paganism of immanence, but the paganism of cruelty and violence. It mocks the vulnerable, reviles the weak, and gains strength through hatred. We don’t have to look too far to discover the “postmodern paganism” threatening American Christianity today. 

Last summer the Trump administration argued in court that more than two thousand migrant and refugee children should be separated from their parents, concentrated in crude detention camps with minimal supervision, and locked in chilled rooms with the lights left on all night. The administration has yet to condemn the petty cruelty of some camp guards and instead has mused that such violence might be politically useful. Hundreds of children as young as two are deliberately denied diapers, soap, and toothbrushes for months at a time to punish their parents. Community donations of the same are turned away. Young women are denied tampons. Young children are denied inexpensive flu vaccines, and if they contract a terminal cancer, they are deported without medical care. Chickenpox and shingles are common. Federal contractors win upwards of $700 per day for each imprisoned child. Seven children have died in custody to date, and many more have been hospitalized. Doctors worry they cannot serve in the camps without violating the Hippocratic oath. The camps themselves were continued from the Obama administration, but the withdrawal of basic necessities is Trump’s innovation. What is this if not the very paganism conservatives decry?

This modern paganism ultimately means the nihilistic exercise of power for its own sake, especially power over weak and vulnerable bodies. In its purest form, it is expressed as conspicuous cruelty, both to render one’s power maximally visible and to increase that power by engendering fear. The cruelty is the point. This is the joyful paganism that Nietzsche sought to revive as the Wille zur Macht, retrieving from ancient Rome the glorious pleasure in cruelty that rewards the strong who exercise their strength. This is the reason Italian fascist Julius Evola hated Christianity for its compassion for the poor and weak.

We find this paganism exposed in the ancient world as well, in the Athenian mockery and massacre of the Melians in Thucydides’s History of the Peloponnesian War, in Thrasymachus’s authoritarian attacks on Socrates in Plato’s Republic, or in Augustine’s shrewd deconstruction of imperial power in The City of God against the Pagans. John Milbank calls this Nietzschean worldview an ontology of eternal violence opposed to an Augustinian counter-ontology of eternal peace. As Schmitz himself suggests, the perfect example of pagan disdain for vulnerability and conspicuous cruelty is the Roman practice of public crucifixion. Pagan is to Christian not as immanent is to transcendent, but as Rome is to the Crucified—a cruel empire to its tortured victims.

But modern paganism can also assume subtler forms, whenever the common good is reduced to ruthless economic competition, confirming Eliot’s fears that we have no values more essential than our “belief in compound interest and the maintenance of dividends.” The paganism we should fear is not secularism, sacred immanence, or pantheist naturalism. It is power celebrating its violence, perceiving the world empty of everything save the contest of wills, a nihilism ruled by the libido dominandi.

This paganism views moral responsibility as a fool’s errand for the weak, since all that matters is to dominate or be dominated. It sacralizes the emperor as an agent of God, scorns truth, despises the weak, and tortures the vulnerable. And it cloaks its nihilism, to cite Eliot once again, in “a disguised and peculiarly sanctimonious nationalism, accelerating our progress toward the paganism which we say we abhor.”