Anthony Kennedy’s Imperial Legacy

In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role.

He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.

He did this without a particularly coherent constitutional theory

.. showing neither humility nor rigor in his ultimate decisions

.. overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose

.. seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.

.. Without being a completely consistent libertarian, he was a general champion of freedom

.. Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.

.. I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism

.. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.

.. what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.

.. judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice

.. unwillingness of elected representatives to act on controversial issues.

.. tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.

.. even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it.

.. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.

.. John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy

.. he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to

let social-democratic policymaking stand (witness his vote to save Obamacare).


The Breakdown of the Capital-Labor Accord and Okun’s Law

we talk a lot about the “post-war capital-labor accord” and the golden age of the 1940s-1970s. In these years, inequality went down, unions flourished, civil rights laws were passed along with LBJ’s Great Society programs like Medicare, etc. Corporations saw themselves as not just profit-seeking nexuses-of-contracts but also as institutions with duties to their stakeholders – employees, local community organizations, etc.

.. Then everything went to hell in the 1970s. Oil shocks, poor economic performance, large increases in foreign competition, an overheated economy created by the meeting of increased social spending and increased military spending, all combined to create massive inflation and other sorts of economic upheaval.

.. union contracts were blamed for causing inflation and big business began to push for

regulatory changes (to fight the hated EPA and OSHA, along with unions) and increased layoffs.

Institutional investors, growing rapidly in size in part *because* of the prosperity of the “golden age” (e.g. the massive pension funds like CALPERS and TIAA-CREF), began to demand discipline from corporations unused to having to listen to anyone

.. Changes in financial regulations and institutions made possible the junk bond market and, in turn, a more active market for corporate control – suddenly, large firms that were used to making acquisitions became targets.

.. by the mid-1980s, the golden age had ended along with the capital-labor accord and something new had begun – perhaps we can call it the “neoliberal era

.. This era’s hallmarks include the dramatic decline in unions, massive increases in the share of wealth going to the top 1% and .1% (cf. Piketty and Saez), massive increases in the share of profits going to finance (cf. Krippner 2005), and an overall change in the way that corporations perceived themselves.

.. No longer institutions with obligations beyond profit-seeking, corporations became (thought of as) legal fictions that served the sole purpose of maximizing shareholder value

.. The old dominant strategy of firms was to “retain and reinvest”, the new mantra was to “downsize and distribute

.. The old model of the firm was GM – a massive, vertically integrated institution that dominated a market and did everything in-house. The new model was the “Original Equipment Manufacturer” (OEM), a firm like Nike that designs a product and markets it but outsources and off-shores as much of the actual producing, distributing, etc. The firm is now a brand, an identity demarcating a certain set of contracts, whose value is more about intangibles than men and machines.

.. Okun’s Law is an economic relationship between the magnitude of an economic downturn (in terms of real GDP) and increases in unemployment

..  if GDP (production and incomes, that is) rises or falls two percent due to the business cycle, the unemployment rate will rise or fall by one percent. The magnitude of swings in unemployment will always be half or nearly half the magnitude of swings in GDP.

.. The last downturns – 1991ish, 2001ish and the current moment – have all been characterized by “jobless recoveries” or, more broadly, much larger decreases and much smaller increases in unemployment than would be predicted by Okun’s law.

.. “businesses will tend to “hoard labor” in recessions, keeping useful workers around and on the payroll even when there is temporarily nothing for them to do”.

.. Manufacturing firms used to think that their most important asset was skilled workers. Hence they hung onto them, “hoarding labor” in recessions. And they especially did not want to let go of their prime productive asset when the recovery began. Skilled workers were the franchise. Now, by contrast, it looks as though firms think that their workers are much more disposable—that it’s their brands or their machines or their procedures and organizations that are key assets.

.. The 1980s saw a reordering of the world – a transition from a period governed by one set of rules that privileged the relationship between businesses and their employees to one that privileged (relatively speaking, in ideology anyway) shareholders.

.. What variables should we care about, if GDP seems to be connected less to welfare than it used to be?

.. the neoliberal period is marked by dramatic, mind-boggling increases in executive compensation without, as far as I know, any signs of better performance or increased shareholder value.

The New Republic’s Super Buzzy, Lefty Upgrade

103-year-old magazine today is a repudiation of its stuffy, neo-liberal past.

Two months later, the “new” New Republic resurrected itself, with eminent Canadian leftist Jeet Heer in the driver’s seat and a buzzy cover story stolidly titled “Whitewash”—a sizzling takedown of the magazine’s complicated racial and social-class history under Peretz’s nearly four-decade tenure. Then the magazine went full-throttle in favor of the Sanders cult, with sometimes frankly Marxist cultural analyses, attacks on Hillary Clinton (from the left), calls for single payer, the $15 minimum wage, resistance to Trump, and opposition to military interventionism.

.. Hughes’ move was not merely a rebooting or rebranding—it was a repudiation of the magazine’s past.

.. “I bought The New Republic to take back the Democratic Party from the McGovernites,” he told the Wall Street Journal in 2012.

..  If William F. Buckley Jr. sought to reform and update the conservative movement with National Review in the 1950s, Peretz was just as redoubtable in his goal to remake Democratic liberalism in the ’70s, ’80s, and ’90s. Not until Roger Ailes joined Fox would an editor exert the kind of ideological tone-policing that Peretz proudly did at TNR.

.. During the 1980s and ’90s, The New Republic’s rise mirrored that of neoliberalism (a philosophy for which it became the definitive journalistic exponent), alongside yuppie New Democrats such as Gary Hart, Joe Klein, Larry Summers, Al From, Al Gore, and an Ivy-educated Arkansas power couple named Bill and Hillary Clinton

.. Once the Vietnam War (and the Pinochet takeover of Chile) ended virtually all support on the left for “imperialist” U.S. interventions, these foreign policy hawks (with which Peretz, Charles Krauthammer, and Leon Wieseltier were very much in accord) left for Team Republican.

.. Once the Vietnam War (and the Pinochet takeover of Chile) ended virtually all support on the left for “imperialist” U.S. interventions, these foreign policy hawks (with which Peretz, Charles Krauthammer, and Leon Wieseltier were very much in accord) left for Team Republican.

..  TNR’s two signal editors—a wisecracking Jewish atheist who attacked supply-siders from the right (Kinsley never believed that tax cuts for the rich, or anyone else, paid for themselves)

.. University of Kansas grad Thomas Frank ruthlessly satirized The New Republic in Salon as a place where sheltered young Ivy know-it-alls would “exercise the prerogatives of their class” by sliding into “ready-made” positions of power where they would “pantomime seriousness” while “trolling” the real left.

.. Peretz and Kinsley transformed the stodgy Washington insider into a brash, impudent, ironic, and irreverent voice that no other “serious” journal dared to match in those pre-cable/pre-Twitter days.

.. Peretz and Kinsley transformed the stodgy Washington insider into a brash, impudent, ironic, and irreverent voice that no other “serious” journal dared to match in those pre-cable/pre-Twitter days.

.. Kinsley agreed utterly with Paul Volcker, Alan Greenspan, and Margaret Thatcher—three of his all-time favorites—that the stagflation of the late 1970s and early ‘80s was directly due to greedy labor unions

.. And when Andrew Sullivan, openly gay, Catholic, Thatcher Tory, took the helm in 1991, TNR doubled down on “trolling the Left,”

.. Then came the attacks by conservative writer Betsy McCaughey against Hillarycare in 1993-94, followed by the controversy over Charles Murray’s 1994 bestseller, The Bell Curve.

.. “DAY OF RECKONING” cover—bordered in blood red with a cigarette-smoking “Preciousand Mary” black welfare queen—where the editors demanded that President Clinton sign Newt Gingrich’s welfare reform bill.

.. None of this would have been particularly remarkable in the pages of National Review or The American Spectator. But what made The New Republic sui generiswas that it took these positions while proudly, even aggressively, touting itself as the arbiter of acceptable liberal Democratic dialogue. TNR was a living rebuke to other opinion-meisters such as The NationMother JonesIn These Times, and NPR’s Democracy Now!, which more-or-less stayed with New Deal liberalism and 1960s-style idealism.

..  Peretz’s best friend and former student Al Gore was humiliated in his 2000 run for the Presidency—denied victory because of Ralph Nader’s Bernie Sanders-like attack from the left

.. And when TNR offered full-throated support for Bush’s Iraq and Afghanistan interventions after 9/11—while capital-L liberals stood in opposition—whatever credibility the magazine had as The Voice of Liberalism finally collapsed. As far as left-wing voices were concerned, TNR’s neoliberalism and George W. Bush-style neoconservatism had now become practically one and the same.

.. one might say that there was simply no room left on the Left anymore for “even the liberal” New Republic. The death of the Peretz TNR and the rise of Bernie Sanders, Jill Stein, Black Lives Matter, the Democratic Socialists of America, Jeremy Corbyn, Chapo Trap House, The Young Turks, Mr. Robot, and Jacobinmagazine were all but simultaneous.

.. TNR alum Jonathan Chait, who has emerged as perhaps the top (white male) tone-policeman of (neo) liberals versus The Left, as he illustrated in his recent New York magazine piece, “How ‘Neoliberalism’ Became the Left’s Favorite Insult.”

.. From 1975 to 2014 (not coincidentally the era that historians Sean Wilentz and Gil Troy christened the twin “Ages” of Reagan and the Clintons), The New Republic was as indispensable an idea factory for “New Democrats” as the Heritage Foundation and Fox News were for Republicans

Of Flying Cars and the Declining Rate of Profit

a particular generational promise—given to those who were children in the fifties, sixties, seventies, or eighties—one that was never quite articulated as a promise but rather as a set of assumptions about what our adult world would be like.

.. Where, in short, are the flying cars? Where are the force fields, tractor beams, teleportation pods, antigravity sleds, tricorders, immortality drugs, colonies on Mars, and all the other technological wonders any child growing up in the mid-to-late twentieth century assumed would exist by now?

.. In 1968, Stanley Kubrick felt that a moviegoing audience would find it perfectly natural to assume that only thirty-three years later, in 2001, we would have commercial moon flights, city-like space stations, and computers with human personalities

.. The usual move in science fiction is to remain vague about the dates, so as to render “the future” a zone of pure fantasy, no different than Middle Earth or Narnia, or like Star Wars, “a long time ago in a galaxy far, far away.”

.. The movie was terrible, but I couldn’t help but feel impressed by the quality of the special effects.

.. They thought we’d be doing this kind of thing by now. Not just figuring out more sophisticated ways to simulate it.”

.. The technologies that have advanced since the seventies are mainly either medical technologies or information technologies—largely, technologies of simulation.

.. The postmodern sensibility, the feeling that we had somehow broken into an unprecedented new historical period in which we understood that there is nothing new; that grand historical narratives of progress and liberation were meaningless

.. all this makes sense in a technological environment in which the only breakthroughs were those that made it easier to create, transfer, and rearrange virtual projections of things that either already existed, or, we came to realize, never would.

.. The postmodern moment was a desperate way to take what could otherwise only be felt as a bitter disappointment and to dress it up as something epochal, exciting, and new.

.. End of work arguments were popular in the late seventies and early eighties as social thinkers pondered what would happen to the traditional working-class-led popular struggle once the working class no longer existed. (The answer: it would turn into identity politics.)

.. What happened, instead, is that the spread of information technologies and new ways of organizing transport—the containerization of shipping, for example—allowed those same industrial jobs to be outsourced to East Asia, Latin America, and other countries where the availability of cheap labor allowed manufacturers to employ much less technologically sophisticated production-line techniques

.. an uneasy awareness that the postwork civilization was a giant fraud.

  1. .. Either our expectations about the pace of technological change were unrealistic
  2. .. or our expectations were not unrealistic (in which case, we need to know what happened to derail so many credible ideas and prospects).

.. the United States and the Soviet Union had been, in the century before, societies of pioneers, one expanding across the Western frontier, the other across Siberia?

.. If it wasn’t unrealistic in 1900 to dream of men traveling to the moon, then why was it unrealistic in the sixties to dream of jet-packs and robot laundry-maids?

.. Future Shock argued that almost all the social problems of the sixties could be traced back to the increasing pace of technological change.

.. by roughly 1850, the effect had become unmistakable. Not only was everything around us changing, but most of it—human knowledge, the size of the population, industrial growth, energy use—was changing exponentially. The only solution, Toffler argued, was to begin some kind of control over the process, to create institutions that would assess emerging technologies and their likely effects, to ban technologies likely to be too socially disruptive ..

.. One of Gingrich’s first acts on winning control of the House of Representatives in 1995 was defunding the OTA as an example of useless government extravagance

.. Auguste Comte, who believed that he was standing on the brink of a new age—in his case, the Industrial Age ..

.. The Industrial Age had developed its own system of ideas—science—but scientists had not succeeded in creating anything like the Catholic Church. Comte concluded that we needed to develop a new science, which he dubbed “sociology,” and said that sociologists should play the role of priests in a new Religion of Society that would inspire everyone with a love of order, community, work discipline, and family values.

.. The old, materialist Industrial Society, where value came from physical labor, was giving way to an Information Age where value emerges directly from the minds of entrepreneurs, just as the world had originally appeared ex nihilo from the mind of God, just as money, in a proper supply-side economy, emerged ex nihilo from the Federal Reserve and into the hands of value-creating capitalists.

.. existing patterns of technological development would lead to social upheaval, and that we needed to guide technological development in directions that did not challenge existing structures of authority—echoed in the corridors of power.

.. Marx argued that, for certain technical reasons, value—and therefore profits—can be extracted only from human labor. Competition forces factory owners to mechanize production, to reduce labor costs, but while this is to the short-term advantage of the firm, mechanization’s effect is to drive down the general rate of profit.

.. Back in the fifties, in fact, many United States planners suspected the Soviet system worked better. Certainly, they recalled the fact that in the thirties, while the United States had been mired in depression, the Soviet Union had maintained almost unprecedented economic growth rates of 10 percent to 12 percent a year—an achievement quickly followed by the production of tank armies that defeated Nazi Germany, then by the launching of Sputnik in 1957, then by the first manned spacecraft, the Vostok, in 1961.

.. We are used to thinking of the Politburo as a group of unimaginative gray bureaucrats, but they were bureaucrats who dared to dream astounding dreams.

The dream of world revolution was only the first.

.. most of them—changing the course of mighty rivers, this sort of thing—either turned out to be ecologically and socially disastrous

most were not military in nature: as, for instance, the attempt to solve the world hunger problem by harvesting lakes and oceans with an edible bacteria called spirulina,

  • or to solve the world energy problem by launching hundreds of gigantic solar-power platforms into orbit and beaming the electricity back to earth.
  • .. American victory in the space race meant that, after 1968, U.S. planners no longer took the competition seriously.

.. the direction of research and development shifted away from anything that might lead to the creation of Mars bases and robot factories.

.. the United States never did abandon gigantic, government-controlled schemes of technological development. Mainly, they just shifted to military research

.. by the seventies, even basic research came to be conducted following military priorities.

.. One reason we don’t have robot factories is because roughly 95 percent of robotics research funding has been channeled through the Pentagon, which is more interested in developing unmanned drones than in automating paper mills.

.. the technologies that did emerge proved most conducive to surveillance, work discipline, and social control.

.. provided the means by which employers have created “flexible” work regimes that have both destroyed traditional job security and increased working hours for almost everyone.

.. what will the epitaph for neoliberalism look like?

.. a form of capitalism that systematically prioritized political imperatives over economic ones. Given a choice between a course of action that would make capitalism seem the only possible economic system, and one that would transform capitalism into a viable, long-term economic system, neoliberalism chooses the former every time.

.. There is every reason to believe that destroying job security while increasing working hours does not create a more productive .. workforce.

.. It’s possible, in fact, that the very dead weight of the apparatus created to ensure the ideological victory of capitalism will sink it.

.. choking off any sense of an inevitable, redemptive future that could be different from our world is a crucial part of the neoliberal project.

.. the change shifted government-directed research away from programs like

  • NASA or alternative energy sources and
  • toward military, information, and medical technologies.

.. the preferred weapon almost everywhere remains the AK-47, a Soviet design named for the year it was introduced: 1947.

.. private enterprise is now funding twice as much research as the government

.. “Basic,” “curiosity-driven,” or “blue skies” research—the kind that is not driven by the prospect of any immediate practical application, and that is most likely to lead to unexpected breakthroughs—occupies an ever smaller proportion of the total

.. The Human Genome Project .. has mainly served to establish that there isn’t very much to be learned from sequencing genes that’s of much use to anyone else

.. Research and development is still driven by giant bureaucratic projects.

.. The increasing interpenetration of government, university, and private firms has led everyone to adopt the language, sensibilities, and organizational forms that originated in the corporate world.

.. the last thirty years have seen a veritable explosion of the proportion of working hours spent on administrative tasks at the expense of pretty much everything else.

.. In my own university, for instance, we have more administrators than faculty members, and the faculty members, too, are expected to spend at least as much time on administration as on teaching and research combined.

.. The growth of administrative work has directly resulted from introducing corporate management techniques.

.. everyone winds up spending most of their time trying to sell things: grant proposals; book proposals; assessments of students’ jobs and grant applications; assessments of our colleagues; prospectuses for new interdisciplinary majors; institutes; conference workshops; universities themselves

.. No major new works of social theory have emerged in the United States in the last thirty years. We have been reduced to the equivalent of medieval scholastics, writing endless annotations of French theory from the seventies, despite the guilty awareness that if new incarnations of Gilles Deleuze, Michel Foucault, or Pierre Bourdieu were to appear in the academy today, we would deny them tenure.

.. It is now the domain of professional self-marketers.

.. Jonathan Katz

.. You will spend your time writing proposals rather than doing research. Worse, because your proposals are judged by your competitors, you cannot follow your curiosity, but must spend your effort and talents on anticipating and deflecting criticism rather than on solving the important scientific problems. . . . It is proverbial that original ideas are the kiss of death for a proposal, because they have not yet been proved to work.

.. tell those same people they will receive no resources at all unless they spend the bulk of their time competing against each other to convince you they know in advance what they are going to discover.

.. the spread of the corporate ethos within the academy and research institutes themselves has caused even publicly funded scholars to treat their findings as personal property.

.. Those thinkers most likely to make a conceptual breakthrough are the least likely to receive funding, and, if breakthroughs occur, they are not likely to find anyone willing to follow up on their most daring implications.

.. the United States and Germany, the two rival powers that spent the first half of the twentieth century fighting two bloody wars over who would replace Britain as a dominant world power—wars that culminated, appropriately enough, in government-sponsored scientific programs to see who would be the first to discover the atom bomb. It is significant, then, that our current technological stagnation seems to have begun after 1945, when the United States replaced Britain as organizer of the world economy.

.. the moment we stop imagining bureaucracy as a phenomenon limited to government offices, it becomes obvious that this is precisely what we have become.

.. cemented the dominance of conservative managerial elites, corporate bureaucrats who use the pretext of short-term, competitive, bottom-line thinking to squelch anything likely to have revolutionary implications of any kind.

.. No population in the history of the world has spent nearly so much time engaged in paperwork.

.. we need to rethink some of our most basic assumptions about the nature of capitalism. One is that capitalism is identical with the market, and that both therefore are inimical to bureaucracy, which is supposed to be a creature of the state.

.. they were right to insist that the mechanization of industrial production would destroy capitalism; they were wrong to predict that market competition would compel factory owners to mechanize anyway.

.. the current form of capitalism, where much of the competition seems to take the form of internal marketing within the bureaucratic structures of large semi-monopolistic enterprises

Defenders of capitalism make three broad historical claims:

  1. first, that it has fostered rapid scientific and technological growth;
  2. second, that however much it may throw enormous wealth to a small minority, it does so in such a way as to increase overall prosperity;
  3. third, that in doing so, it creates a more secure and democratic world for everyone.

It is clear that capitalism is not doing any of these things any longer.

.. many of its defenders are retreating from claiming that it is a good system and instead falling back on the claim that it is the only possible system

.. they mean to convince us that technological progress is indeed continuing, that we do live in a world of wonders, but that those wonders take the form of modest improvements (the latest iPhone!)

there’s the problem of trying to convince the world you are leading the way in technological progress when you are holding it back. The United States,

  • with its decaying infrastructure,
  • paralysis in the face of global warming, and
  • symbolically devastating abandonment of its manned space program just as China accelerates its own,

.. it will not happen within the framework of contemporary corporate capitalism—or any form of capitalism. To begin setting up domes on Mars, let alone to develop the means to figure out if there are alien civilizations to contact, we’re going to have to figure out a different economic system.

.. whatever replaces capitalism is based on a far more egalitarian distribution of wealth and power—one that no longer contains either the super-rich or the desperately poor willing to do their housework.