Have We Passed the Point of No Return?

I am profoundly sad today. Yesterday, the country I love, the country I served, and the liberal democracy I believed in revealed itself to be under the thumb of an ultra-conservative, self-serving minority.

I remember the racist backlash when Michelle Obama told a 2008 primary campaign audience,

“For the first time in my adult life, I am really proud of my country, because it feels like hope is making a comeback … not just because Barack has done well, but because I think people are hungry for change.”

I too was proud – for the same reason. We were about to elect an African American, running on a platform of “hope and change,” to the presidency of the United States. I was all in.

But eight years later, thanks to an archaic, anachronistic, Electoral College system, an amoral, ignorant, uninformed, racist, misogynist, draft-dodging anti-democrat was elected to the same office – even though he did not win a majority of the vote. That’s when the scales fell from my eyes.

Today the Supreme Court, including the three justices he appointed, indicated it is planning to take away the established right of a woman and her doctor to decide the future of her pregnancy. A leaked draft opinion revealed that five conservative justices, all of whom affirmed the importance of stare decisis (precedent) in their confirmation hearings, are poised to reverse 50 years of settled law, overturn Roe vs. Wade, and deny women their established right to an abortion.

But today’s sadness extends far beyond taking away a woman’s right to control her own reproductive health. In recent years, other changes have shown us the anti-democratic vector but until now I believed we could reverse the trend at the ballot box. The truth is hard, but the list of America’s failings is long and shows just how far and fast we are moving away from a true democracy.

In October of 2021 the New York Times reported that China’s dictator, Xi Jinping, “shared with President Vladimir V. Putin of Russia a belief that ‘autocracy is the wave of the future and democracy can’t function’ in the complexities of the modern world.” President Biden responded by telling reporters that, “This is a battle between the utility of democracies in the 21st century and autocracies. We’ve got to prove democracy works.”

I don’t know precisely how we failed to uphold the Founder’s vision and where or when we passed the point-of-no-return (PNR). It was somewhere in the last 60 years, and I was around for all of it. I’ve been the frog in the pot filled with pleasantly tepid water. I stayed there as it was gradually heated. I, like the frog, would have boiled to death had it not been for Donald Trump. I knew the temp was rising but didn’t feel the danger until I saw his scorched earth attack on our democratic norms and institutions. He wasn’t solely responsible for what Zorba the Greek called “the full catastrophe,” but he and his posse put the final nails in the coffin.

The tragedy lies in the fact that our founding documents had the bones to build on. The Founders studied and debated alternatives to build a system with institutions that protected citizens against the tyranny like the one they were rebelling against. It wasn’t perfect, but it functioned for almost 200 years.

Those documents were the foundation of the American experiment, and it’s only fair to ask why I’ve lost faith in the American experiment. Here are the reasons I see for the unraveling of our democracy:

· Slavery – the root cause and reason for American racism
· Federalism – keeps us from equal rule of law solutions across state boundaries
· Electoral College – a flawed device created to equalize population disparities
· Gerrymandering – demographic engineering that gives a political advantage
· Judiciary – the Federalist Society’s politicization of the independent branch
· Education – failure to adequately fund and teach critical thinking skills
· Militarism – America’s dependence on the military-industrial complex
· Police – reliance on a military approach to law enforcement
· Infrastructure – failure to fund and maintain basic infrastructure
· Healthcare – the only developed nation without a universal healthcare coverage
· Income inequality – a system that favors the rich to the detriment of all others
I’ve always described myself as a short-term pessimist but long-term optimist. My personal PNR came on January 6, 2021 when those states of mind swapped places. Today, I see a fractured, dysfunctional, polarized country with no viable reconciliation in sight. My generation failed to keep progress on track. I spent 7 years defending it and many more as an active citizen before seeing it unravel. I fear for my children’s future and even more for my grandchildren’s. Maybe they will be more successful than we were in finding a course correction. For their sakes, I hope so.

I continue to believe that education, free speech, and a free press are the foundations of a democratic state, and I believe in the power of words – written and spoken. I don’t know if what I write changes minds, but I have several friends who disagree with my politics but are regular readers and continue to give me feedback. I respect their opinions and hope our dialogue keeps us moving toward a safe place somewhere in the middle.

Today’s headline reflects America’s polarized upset over Roe v. Wade. The “reveal,” in a “leaked” draft of the opinion, is yet another example of a breached norm. This one further undermines the reputation and credibility of the Supreme Court, an institution we have always relied on for apolitical independence. Chief Justice Roberts has promised a full investigation, and it’s the right thing to do. But it doesn’t lessen my profound sadness. It only adds to it. I sincerely believe we have passed the point of no return, but I’ve been wrong before. The closet optimist in me hopes a following wind will kick in and prove me wrong again.


  1. Hi Jack, As a lawyer I know you know that if Roe v. Wade is defeated it does NOT limit a woman’s right to abortion. All it does is return it to the states, where it should be. It should be left to peoples voting whether to approve to abort a child, as Biden says, or not. That is Democracy, not 9 unelected judges making a ruling that the Constitution does not address. And if it is not addressed it should be rightly returned to the States and let the people vote. Washington, Oregon, and Calif will not be effected by a decision either way. So relax.

  2. A deeply depressing “red list”, for sure. Slogans substitute too easily for critical thought. Perhaps Reagan’s assertion that the most “terrifying words in the English language…I’m from the government and I’m here to help.” inflicted the most long lasting damage.

    • Pete: Nice to hear from you. I always have trouble with Reagan. I was in law school and living in Berkeley when he gassed the crowd at “People’s Park.” His words take on a different meaning when you consider the Roe v. Wade upset.

      • I was in Prosser, Wa trying a case involving a contract involving sale of wheat to a broker when the 1980 election results were announced. My clients were elated. I’m sure you knew them both. I was not.
        One has passed away now. We still disagree on both economics and politics, but for over sixty years have remained good and constant friends.
        We can discuss issues and agree to disagree, without being disagreeable.

      • And next on the Alito, Thomas bucket list. People who don’t follow evangelical Christian teachings will have to sit in the back of the bus, and won’t be allowed to use the same lunch counter as god’s chosen people.
        My generation has learned nothing.

  3. Hi Jack
    Unfortunately I’m pretty much in your same mindset.
    I’m trying to maintain some final optimistic/pessimism, but it’s fading fast.
    Turning the abortion problem over to the states is just kicking the can down the road.
    Should 51% of the citizens of Idaho get to decide whether 14 year old Jane Doe who is pregnant because of rape by her uncle can or cannot have an abortion? I think it should be decided by Jane and her doctor, not by a vote of her neighbors.
    And what if Louisiana voters decide abortion is homicide?
    And the decision does in fact affect Washington because women will travel here for abortions and states will begin to ague over whether that is “allowed”. Should we send the bills to Idaho and Texas?
    The Supreme Court has been “very wrong” in my opinion a surprising number of times. I have a list of more than 30 such cases. Of course my opinion is only my opinion. But how about this statement by Justice Joseph Bradley in the majority (8:1) opinion of Bradwell vs Illinois: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life……The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.”
    Our Supreme Court decided in that case that a woman should not be an attorney! 8 to 1!!!!
    You may say “Oh that was 150 years ago”, but I would argue the attitudes of white Christians in black robes may not have changed as much as you might think.
    Enough. Sorry to pontificate (pun intended).

    • M and I are watching Under the Banner of Heaven the TV version of Jon Krakauer’s book about a fundamentalist Mormon family. Justice Bradley’s words about women might be Mormon-light in that context. In the Roe reversal it’s Catholics in black robes. How is we end up with 6 Catholics (Gorsuch was raised Catholic) on the Supreme Court when they are only 11% of the US population that identifies as Christian. People were suspicious of Kennedy when he ran. We should have been more suspicious of the Supreme Court nominees.

  4. I am, at best (worst?) an agnostic, religion-wise. But I know or have known many more liberal Catholics, Jews, and Christians, than those of any faith that are social conservatives. I confess to knowing few, if any, Muslims or Hindus. I know several Native Americans whose spirituality differs from all of the above. My experience there is the same.

    Therefore, I have no necessary aversion to Justices or judges who profess any particular faith or belief, or none at all. There exist all sorts of personal biases. They are inescapable.

    But if a nominee to the highest Court of our Country lies about the absence of his or her bias based upon religious or any other belief in the context of questions posed in confirmation hearings, that is so beyond the norms of society and of what most of us learn about basic human behavior, that such nominee, or if confirmed, Justice, should be deemed unfit to serve.
    The remedy of impeachment is then appropriate and should be exercised.

    • Pete: You and I are basically in the same place with respect to faith and belief. I agree biases are baked in. We have to hope that our judiciary is vigilant and not driven by them. My comment to Tom Bird about Catholics had to do with the fact that the composition of the Supreme Court is so skewed with that religious demographic. We’ve been talking for years about having institutions that “look like America.” We’ve done better with women’s representation, and Sotomayor is a Hispanic. But Clarence doesn’t really represent African Americans and seven of the nine went to either Harvard or Yale. Hardly representative.

  5. No doubt in my mind.
    I took your point to mean faith bigots. I’m not ani-faith, nor did I take you to be. But the “My way or the highway” folks have driven us to the brink, on both “sides”.
    Trouble is in my view, extreme views have now driven a wedge between the Eisenhower, Bush and their remnant Republican brothers, on the one hand, and their misnamed Republican successors on the other.
    You have used the frog in the kettle analogy. That applies with greater force to the Republican Party. The inmates finally took over the asylum, to make another analogy.
    That phenomenon contributes mightily to my shared pessimism.
    Some day I’ll share with you a personal experience with Loren Culp, Washington State gubernatorial candidate. Holy Smokes! Where is a Dan Evans when we desperately need one, or even a John Spellman.

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