RSN: Ketanji Brown Jackson's Deft Legal Reasoning Collides With Political Reality
09 October 22
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The rave reviews that the newest Supreme Court justice received on her debut were well deserved, but they’ve created a set of outsize expectations that she can never fulfill.
If you’re excited about Jackson’s first turn in the trenches of oral arguments, it’s likely because you have observed some basic things about the Supreme Court over the past decade. You’ve likely noticed that the American public has been, in recent years, inexorably bombarded with far-right rulings that lay waste to a wide array of progressive priorities, from abortion to gay rights, to gun control, and on and on. Musings from the legal academy about possible “compromises” and “middle grounds” are proffered and then soundly rejected, as the archconservative majority unapologetically checks every box on Mitch McConnell’s wish list. And this reign of terror began well before Justices Anthony Kennedy and Ruth Bader Ginsburg were replaced with the latest Federalist Society stalwarts, Brett Kavanaugh and Amy Coney Barrett. Indeed, with the Supreme Court gearing up to decide yet another batch of hugely impactful cases—stretching from voting rights to affirmative action and more—you are to be forgiven for being a bit more circumspect about what Jackson is likely to offer as the newest member of a three-person liberal minority.
Naturally, none of this changes the facts that were already in evidence: Jackson, by all measures, is an extraordinarily capable and effective jurist whose presence on the high court is welcomed. And it’s true that the task that she will be primarily engaged in—writing dissents as a member of the losing minority—has played a very influential role in transforming the law over time.
But it is hardly satisfying to hear that the Republican Party’s brazen hijacking of the nation’s judiciary will be compensated with a mere opportunity to influence the law some small way in the distant future. It’s also noteworthy that the most riveting examples of a dissent eventually becoming influential legal writ—from Clarence Thomas’s once-fringe views on abortion and affirmative action to Antonin Scalia’s pleas to expand executive power—were paired with an aggressive conservative political movement determined to win these ideological wars. As of now, no such movement exists on the political left to provide Jackson’s dissents—and let’s remember, she’s yet to write one for the high court—with similar rhetorical and political bolstering. As New Republic contributor Simon Lazarus has repeatedly urged, this is a project that liberals desperately need to take up.
Whether Jackson’s efforts to overcome conservative jurisprudence prove successful remains to be seen, but the knee-jerk reaction to her opening performance is an unfortunate illustration of the establishment left’s broken view of power. It’s hard not to see parallels to Ruth Bader Ginsburg, who was heralded as a progressive hero—endlessly memeified as “Notorious RBG”—even as her famous dissents in cases involving voting rights and abortion failed to durably change the trajectory of the law.
This was an obvious result to most, given the composition of the court, but the Democratic establishment, prioritizing stability over substantive results, resisted calls for more aggressive institutional interventions, throwing cold water on proposals such as court expansion. Tragically, the greatest inflection point in Ginsburg’s career may very well end up being her replacement by Amy Coney Barrett, whose appointment radically changed the composition of the court, spelling the end of Roe’s abortion rights protections and, likely, much, much more.
We see this dynamic in the broader political context as well. From Speaker Nancy Pelosi’s resistance to impeach President Trump in the wake of the January 6 insurrection to the Democratic leadership’s insistence on elevating “kitchen table issues” above GOP extremism, the mainstream left takes a trickle down–like approach to political power: just let the horrors of the modern GOP speak for themselves, and the voters will take care of the rest. Politics, to the establishment left, is self-executing, and direct, aggressive intervention from political leaders (such as calling for court expansion or abolishing the filibuster) is not only unnecessary but potentially harmful.
In the context of the Supreme Court, it’s worth considering what exactly those celebrating Jackson’s debut expect to happen. The thinking appears to be that one-upping Samuel Alito at oral arguments and carefully debunking the right’s technical legal arguments will lead to the Supreme Court, despite being firmly in the grip of a 6–3 conservative majority, somehow beginning to move in the right direction, presumably through persuasion, shame, or public outcry. The mere presence of effective justices confirms the inherent resilience and legitimacy of the institution itself, and it’s only a matter of time before the rot is rooted out.
But anyone with even a shred of experience observing this court—and its growing turn toward a form of judicial Calvinball that makes a mockery of legal traditions, precedents, and even facts—should understand that expecting a change of trajectory in the near future is fruitless. The reality is, Jackson does not represent some sea change in public opinion or liberal jurisprudence. The Supreme Court has long been out of step with public opinion on almost every major issue, but its rightward shift has only gained steam. What we’re left with is a severe structural dysfunction, not a mere political setback that can be remedied through the normal avenues of persuasion and effective messaging. Jackson, in other words, cannot remedy from within an institution that’s been reverse-engineered to work against her. Pretending otherwise is not only grievously unfair to her but guaranteed to breed further futility and cynicism.
As we have learned over and over again, our political system is not going to self-produce some kind of automatic reckoning for the Supreme Court or the Republican Party more broadly. Short of direct, institutional confrontation by our political leaders, Jackson will spend her career holding very little power beyond her ability merely to demonstrate her competent practice of a legal tradition that’s no longer applicable. Her arguments will have merit and will be, to many, convincing. They will also mostly be demonstrations of shouting into the void. Democrats need major structural reform, and there are no shortcuts to achieving it.
Matryoshka doll statues near a Mediterranean Sea beach in Antalya, Turkey, on Aug. 7. This small park is known as Matryoshka Park. More than half the traditional Russian dolls are missing since vandals destroyed them after Russia invaded Ukraine. (photo: Diego Cupolo/NurPhoto/Reuters)
"This is a war of the Russian government, not the Russian people. My issue is not just the mobilization, it's the war. I have relatives in Ukraine and this is a disgusting situation for all of us," says the other man, who is 26.
Life is getting more complicated for Russians in Turkey
The men have been in Antalya for two weeks — having left Russia immediately after Putin's draft announcement — and still feel as lost in Turkey as others who've just arrived today. They've left their families behind and have no future plans. They've found no answers to their many questions.
"We need to solve a lot of problems, mainly about how to live in Antalya," says the 25-year-old.
Things have gotten more complicated recently for Russians in Turkey. Residency laws are getting tighter in the city, making it harder to live and work here legally.
Another big issue is money. After facing pressure and threats of secondary sanctions from the West, Turkish banks suspended the Mir payment system – the Russian version of Mastercard and Visa – which makes it harder for Russians to get currency or even pay the tab at Turkish restaurants.
There is only one cash transfer that Russians can access in Antalya — Golden Crown, a Russian transfer system. It's never without long lines of Russians in front, but the most they each can withdraw per day is $200.
Russian tourists are also opting to stay indefinitely in Turkey
Russians continue to come to Antalya in large numbers. According to the provincial governor, up to 19,000 Russians are arriving every day. Some are fleeing the draft and others are tourists who decide to stay.
than half the sculpture's dolls are missing now, since vandals destroyed them after Russia invaded Ukraine.
Turkey is one of the countries where Russians are fleeing conscription, following Russian President Vladimir Putin's plan to mobilize an additional 300,000 troops to bolster his war in Ukraine. The exodus can be felt acutely in Antalya, a large city on Turkey's southwestern coast. It's a longtime Russian tourist destination that's now becoming a refuge for those who don't want to fight in the war.
Anti-war Russians began moving here in March, shortly after their country's invasion of Ukraine. The current influx is larger and known as "the second wave" among the local Russian community. Whole neighborhoods in the area near Matryoshka Park are mostly Russian now. It's the language heard on the streets and seen on signs and restaurant menus.
Two young Russian men wander around the park, looking as though they have just stepped off the plane — carrying backpacks and dressed for much colder weather than Antalya's 90 degrees Fahrenheit. Like many Russian men around the city nowadays, they are easily identifiable as having fled the draft, with their meager belongings, winter outfits and stunned expressions.
These two men are from Kazan, in the semi-autonomous region of Tatarstan in southwest Russia. They don't want to reveal their names, fearing retribution from the Russian government.
"It's dangerous for any male," says one of the men, who is 25. "Doesn't matter if you're old, have more than three kids and no military experience. All men are in danger."
Turkish tourism companies that work exclusively with Russians tell NPR they have seen a significant increase in single males booking long stays. But vacationers also are not boarding their planes back to Russia, and some flights are going back half empty.
One man who opted to stay is a 34-year-old from Moscow. He is afraid to reveal his name, but tells NPR that he bought a ticket to Turkey a few days after the draft, spending several thousand dollars and leaving in a rush. He didn't even have time to notify his bosses, who have no idea he's leaving the company.
"Tomorrow when I have a Skype call, I'm going to surprise them," he says, laughing.
Like all the other men of fighting age who've tried to leave, he too faced questioning by authorities at the airport in Moscow.
"I saw some people who were diverted from the floor and taken to a separate room," he says. "I couldn't see what happened to them but I have a feeling they were not allowed to leave."
He was among the lucky ones because he hadn't been drafted by the time he left — and he'd bought his flight as a tourism package so he could claim to be a tourist when asked why he was leaving.
But unlike other men who've fled to Turkey and told NPR they would never go back to Russia, this man says he will go back if Russia loses the war — which he believes can happen, as long as Russia sticks to conventional weapons.
"I will go back then, because we have to rebuild," he says. "We have to vote for new people who will choose a different way. And one day, maybe when I am old, people will visit Russia again, because it's a beautiful place."
The only choice he could make now, he says, was to leave and not be forced to kill people in a war he doesn't believe in.
Fadwa Mahmoud holds portraits of her son and husband, who disappeared in 2012, as about 300 landline telephones placed by Syrian families stand at the Bebelplatz as a call to governments to do more to seek information about detained people in Syria, in Berlin, Germany on August 28, 2021. (photo: Hannibal Hanschke/Reuters)
Member states must back Secretary-General António Guterres’ proposal to set up a body on Syria’s disappeared.
Families’ searches for detained relatives are fraught with the danger of being arrested, extorted and abused. The Syrian government and other parties have deliberately prolonged the suffering of hundreds of thousands of family members by withholding information on the fate and whereabouts of those missing or disappeared.
A much-awaited step has now been taken, providing the international community with a pathway to address the practical concerns and real-life implications of this terrible phenomenon.
In August, the UN Secretary-General António Guterres released his landmark report on how to bolster efforts to clarify the fate and whereabouts of missing persons in the Syrian Arab Republic and provide support to their families, as requested by the United Nations General Assembly in Resolution 76/228.
The report unequivocally recommends that member states establish a new entity to help coordinate and build on existing efforts to address this situation.
We warmly welcome the secretary-general’s recommendation as it is consistent with the forceful advocacy led by Syrian associations of families of the missing. For years, the UN Syria Commission of Inquiry has flagged the need for such a body to consolidate claims filed with a wide variety of non-governmental and humanitarian organisations, to efficiently and effectively track and identify those missing and disappeared, and to assist their families who are taking many risks and facing hardships in their continuing search. We have always stressed that family, victim and survivor participation must be central to its functioning.
With the release of the secretary-general’s report, there should no longer be a debate about the need for such an international entity. His message is very clear: any progress towards addressing the continuing tragedy of missing persons in Syria requires a coherent and holistic approach going beyond current efforts. The UN General Assembly should move swiftly, passing a resolution establishing this new entity, setting out its mandate and framing its priorities.
Experience globally shows that the longer it takes to establish such a mechanism, the more difficult it will be to ever clarify the fate and whereabouts of the missing and those forcibly disappeared.
The secretary-general’s report described the gaps in current efforts that a new mechanism can fill: It can provide a one-stop shop to support families searching for missing loved ones. It can coordinate and consolidate their claims to learn how many are missing. And it can advocate for access to all places of detention and other relevant locations controlled by all actors in the conflict.
This mechanism would not only focus on those who have disappeared in detention, but also on all the Syrians who have gone missing as a direct result of more than a decade of fighting. The war rages on, still forcing civilians to flee, while conditions for Syrian refugees in neighbouring countries grow increasingly difficult and uncertain as refugee-hosting countries grapple with complex economic, social and political challenges.
With welcomes wearing thin and the looming threat of being forced back to Syria, refugees often choose to risk their lives during perilous sea journeys or to go on dangerous overland treks to reach the borders of Europe. The recent disaster off the Syrian coast with more than 100 desperate refugees drowning in the sea, and so many tragedies before, show the transnational complexities of the issue of the missing and disappeared stemming from the conflict in Syria.
We have had the privilege of meeting on many occasions with the families, mothers, husbands, wives, children, friends and colleagues of the disappeared over the past decade. We and our team have listened to them, and while individual circumstances may differ, their message is consistent and clear – they will not stop until they find their missing relatives or uncover the truth about their fate. Families have the right to know the fate of their loved ones.
The considerable wealth of information that our Commission has collected over 11 years will be made available to the new mechanism in line with the consent provided by our sources. The Commission has already begun preparing for the transmission of the data entrusted to it by our sources, in line with their consent, and we hope other organisations dealing with missing people in Syria are doing the same.
Families have waited far too long for action at the international level. The time to act is now. Member states from the different regions of the globe have a rare opportunity to put their weight behind this meaningful humanitarian effort that will help address the suffering caused by the scourge of missing and disappeared Syrians.
Last, we should not forget that the Syrian government and the armed groups hold primary responsibility for this tragedy and can act swiftly to resolve it. They can begin by allowing immediate access by international humanitarian organisations such as the International Committee of the Red Cross to all places of detention. They can permit visits by the families. Knowing who is alive and their whereabouts would be a major step forward in breaking the wall of silence around the fate of the missing and the disappeared.
An empty vaccination site in Lewisville, Tex., on Sept. 29. Just over 11 million Americans — or about 4 percent of those eligible — have received the new bivalent booster shots despite entreaties of health experts. (photo: Nitashia Johnson/WP)
With only 4 percent of eligible people fully boosted, experts fear thousands of people may die needlessly
“And then the president is saying things like, ‘The pandemic is over,’ ” Gonzales said of President Biden’s comments during a recent “60 Minutes” interview. “That doesn’t help” motivate him to get a shot.
Gonzales’s lack of urgency typifies the view of many Americans, worn down by a never-ending pandemic and unsure about next steps as the nation enters its third covid winter. Some have stopped paying attention to health officials’ recommendations altogether, despite projections of a fall and winter wave with the potential to sicken millions and kill tens of thousands, particularly the elderly and sick. About half of Americans say they’ve heard little or nothing about the shots, according to a recent tracking poll by the nonpartisan Kaiser Family Foundation.
“We have got to explain the value of these vaccines for the American people … [and] why this is probably the single most important health intervention they can make right now to protect themselves and their health for the next three to six months,” Ashish Jha, the White House’s coronavirus coordinator, said in an interview.
Federal officials have spent the past year urging Americans to get booster shots to bolster their protection against the coronavirus, which wanes over time. In early September, they rushed out the first new shots — reformulated to target the still-dominant omicron variants — to give people time to get inoculated before a likely cold weather surge, when respiratory infections increase as people head indoors, and recommended that all Americans 12 and older receive a third and fourth dose of vaccine.
But the campaigns have lagged badly. Only about 105 million U.S. adults — roughly 40 percent — have received the third shot of vaccine initially offered a year ago, according to federal data, a far lower rate than countries like the United Kingdom, where more than 70 percent of adults have gotten a third dose. That figure is also well behind the 200 million U.S. adults who completed their primary series of shots.
Early data shows that just over 11 million Americans — or about 4 percent of those eligible — have received the new bivalent booster shots. A third of adults say they eventually plan to get those shots, according to KFF polling.
For public health leaders, the low booster rate is startling in a nation that financed the shots’ development, offers them free and touts them as the best way to protect against a virus that has already claimed more than 1 million lives in this country.
The lagging booster rate is also blamed as a major contributor to the high covid mortality rate last winter and the continuing deaths of more than 400 Americans on average per day linked to the virus, according to The Washington Post’s coronavirus tracker. An analysis by the Commonwealth Fund, an independent research group, forecasts that more than 75,000 lives might be needlessly lost if the fall booster campaign comes up short.
Eric Topol, a professor of molecular medicine at Scripps Research Institute, blamed federal agencies for being too cautious and sending mixed messages.
“Obviously, there’s been a lot of missteps [in the government’s response],” he said. “But to me, this is the most important one: When you have people who were willing to get two shots, and then you lose them to not get a third, or a fourth, or fifth, it’s a travesty. These are people who are willing to get vaccinated.”
Federal officials privately acknowledge mistakes in last year’s initial booster shot rollout. After Biden announced in August 2021 that every American adult should get a booster shot in the fall, some advisers and experts at the Food and Drug Administration and the Centers for Disease Control and Prevention raised concerns that the decision appeared to have been made before they had fully reviewed the data.
Some public health experts outside the government, meanwhile, argued two doses of vaccine were sufficient to protect most people.
The competing sound bites confused and alienated many Americans, and intimidated officials, according to Topol. “CDC was afraid to boost the booster message, thinking that that would diminish confidence in [the] primary series vaccines and give the anti-vax groups fodder,” he said.
“I blame the federal health bureaucracy,” agreed Jon Favreau, a host of “Pod Save America,” a progressive podcast, and former speechwriter for President Barack Obama. “This was not the White House’s fault. This is not the top scientists in the administration’s fault. This was the agencies dragging their feet and a small, very vocal group of experts who happen to be on Twitter a lot.”
Right after Biden announced the booster plan, Favreau sought out and got a third booster dose — not waiting for the health agencies to act. “I had a baby at home that was unvaccinated, and I didn’t want to take my chances,” he recalled.
A CDC spokesperson defended the agency’s process to review and encourage the boosters last year.
“Suggesting that federal agencies’ review of the boosters had some significant impact on their uptake is bizarre and wrong,” said the CDC’s Kevin Griffis. “We know the reasons why people don’t get boosted … It’s not because experts spent a few weeks reviewing the data” but because many vaccinated Americans believe that two shots are sufficient.
Jha acknowledged missteps last year, blaming “a group of public health people who I think unduly expressed skepticism.”
“And what we saw was a lot of Americans get very sick and die in the omicron wave because they were unboosted,” he said. “ … There’s more and more data out [now] that shows that when people get their boosters, they’re far less likely to end up in the hospital, far less likely to die.”
Jha said the administration will lean on that data while readying a campaign intended to pump up interest in the boosters starting this month. The federal health department is running digital ads that encourage people to get coronavirus vaccines and boosters along with their flu shots, and the administration is planning events, such as vaccine clinics at colleges and workplaces, to tout the new bivalent shots. The department will also run television ads about the updated shots beginning Oct. 17, and target Hispanic and Black communities in an ad blitz the following week, officials said.
The White House has also tweaked its messaging. Officials are describing the shots as an “updated covid vaccine,” hoping that avoiding the word “booster” shores up confidence. They’re also urging Americans to get “annual” covid shots, believing it will better prepare people to fight a virus that is expected to be around for years.
“We’re off to a good start,” Jha said Friday, pointing to data that about half of the new boosters have gone to Americans 65 and older, who are at elevated risk for severe disease.
But there is scant evidence such a campaign will win over holdouts, with many Americans fatigued by covid messages, doubtful about the threat and having reached their own conclusions about how best to navigate a persistent pandemic. Forty-six percent of respondents to an Axios-Ipsos poll last month said they had returned to their pre-pandemic activities, the highest percentage since the poll began in January 2021.
Other Americans say they want to take necessary precautions but have tuned out the latest recommendations; still more have fallen prey to misinformation, or confess to sheer exhaustion with covid messages, roughly 1,000 days after federal officials first warned of a mysterious pneumonia in central China.
“A lot of people have wanted to move on from the pandemic,” said Mollyann Brodie, who oversees KFF polling, listing reasons for the diminished attention. “Partly because the surge has abated, partly because of pandemic fatigue — and partly because the risk to an average healthy person is different than it was earlier.”
Researchers also cite persistent gaps in knowledge about the vaccines, with rural populations and communities of color trailing White, suburban groups. For instance, among fully vaccinated adults, only 41 percent of Hispanics and 45 percent of Black Americans said they knew the CDC had recommended the new booster shot, compared to 51 percent of Whites, according to KFF polling.
“I don’t know that people are necessarily listening to the messages of the government,” said Marcus Plescia, chief medical officer of the Association of State and Territorial Health Officials, which represents public health agencies around the country. “Maybe it’s time to bring in some other folks or messengers that may be more effective.”
Brodie agreed, saying that “much of America has had to become their own sort of public health department, making decisions for themselves and their families.”
A mixed response
Experts like Brodie and Plescia say that while some Americans have tuned out the booster and vaccination campaigns — with roughly one-third of adults not having gotten their primary coronavirus shots — there are likely tens of millions of people planning to seek out the latest boosters.
“[I’m] beating down the door,” said Alyssa Thacker, 33, at a Walgreens in Fox Point, Wis., last week, pushing a stroller with daughters, Ari, 4, and Aoife, 2. “I’m third trimester pregnant and I want to protect my fetus. I want to protect my children. I want to be able to travel and not catch it and not inadvertently infect anyone else.”
Thacker said she plans to give her two daughters the new booster as soon as it is available to children.
Others say they intend to get the shots, but are putting them off because of recent infections or boosters.
“I’m in that waiting period,” said Brodie, who said she received her last booster in August and wants to wait to get the new shot until November. Federal officials recommend that people wait three months since their most recent covid infection or at least two months from their last booster.
But a significant group is confused about the need for the new boosters and their benefits, or downright opposed to them.
Sitting at a table inside the Lewisville, Tex., public library, which she made sure was wiped down, Kay Cudjoe, 65, a retired educator, said she’s already made her appointment for the new booster, which would be her fourth dose — but isn’t planning on any more.
“This is the last one I’ll have to get,” Cudjoe added. “At least that’s what I understand.”
Maggie Clement, 27, who works at an art and pottery studio in Royal Oak, Mich., said she hadn’t heard about the new boosters until her boyfriend mentioned the shots that morning. “I had no idea,” she said. Clement, who said she was vaccinated twice and boosted in 2021, said she will get the new booster, but is worried about the need to plan around it.
“The first two shots, I missed a day of work. And with my booster, I missed two days,” she said.
Some organizations, such as colleges and universities, are moving to require the boosters — as they did with earlier vaccines — amid evidence that such mandates compel uptake.
“Students must be compliant with all vaccine requirements in order to register for the spring term,” Harvard University announced in September. “This includes the annual flu shot as well as the bivalent Omicron-specific COVID-19 booster.”
But this time around, there is little appetite to try to persuade employers to mandate booster shots, said Ezekiel Emanuel, who coordinated efforts to persuade many health care organizations and universities to compel them last year. Emanuel said that while he believes such organizations should require the new shots, he has no plans for another campaign, citing legal challenges and other complications.
“A lot of people who were vaccinated later got omicron — I think that’s not getting enough attention when we talk about the appetite for boosters,” Emanuel added. “People have become a bit cynical about the vaccines’ benefit. I know people who have gotten four shots and still got infected.”
Not every expert believes that more shots are widely necessary. Paul Offit, director of the Vaccine Education Center at the Children’s Hospital of Philadelphia, was one of two members of the FDA advisory panel who voted against recommending authorization of the new booster in August.
“I just don’t think we have any evidence that it’s better,” Offit said, pointing to a New England Journal of Medicine study that he said “shows underwhelming evidence” for it.
Still, he endorses the shot for more vulnerable groups: people over age 75 or living in nursing homes; those with chronic conditions such as severe Type 1 Diabetes, lung or heart disease; and those with weakened immune systems.
But Offit noted the public no longer recognizes covid-19 as the threat it was in the spring of 2020, adding that the low uptake numbers, in part, represent “booster fatigue.”
Reaching holdouts
Inside the White House, officials predict that interest in boosters will grow if covid infections rebound this fall and winter. Americans could be particularly motivated by the arrival of “scary European variants,” such as omicron descendants B.Q.1.1. and BA. 2.75.2, which are spreading overseas, show an ability to evade treatments and could lead to more serious illness, said a senior administration official who spoke on the condition of anonymity because they were not authorized to comment.
Biden officials also have been calling on GOP leaders to better highlight the continuing risks of the virus, citing persistent gaps in vaccinations between Democrats and Republicans. “A lot of [the booster lag] is because of political divisiveness,” Anthony S. Fauci, the government’s top infectious-disease expert, said in an interview Tuesday. “I mean, there’s no secret that red states are under-vaccinated and blue states have a high level of vaccination.”
And mindful that more than 150 million Americans every year receive a flu shot, officials have amped up efforts to link the two vaccines. “I really believe this is why God gave us two arms — one for the flu shot and the other one for the covid shot,” Jha said at a recent briefing.
Others have pressed to use a diverse cast of messengers to explain the shots’ benefits, particularly to communities of color.
“We really have to change the way that we reach out to people — we also have to change the face of those that are reaching out,” said Kizzmekia Corbett, a Black scientist and Harvard immunology professor who helped develop the technology behind the vaccines, in a recent Washington Post Live interview.
“Working on the vaccine development early on in the pandemic, I felt … I should just step away and go on tour and just convince people to get the vaccine,” she added. “And I wish I could do that here with the boosters as well.”
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Wells Fargo earned $1 billion while Bank of America raked in over $800m in overdraft and NSF revenue from January through September 2021. (photo: Elise Amendola/AP)
In a little publicized initiative, the Biden administration is seeking to tackle the ‘junk fees’ hitting Americans when they can’t afford it
But Joe Biden – in a little publicized initiative – is seeking to tackle these hidden costs and has made eliminating, or at least drastically reducing them, one of the key planks of his economic plans.
At a recent meeting of the White House competition council meeting, the third of its kind since its creation in 2021, these added fees across all industries were top of the agenda.
“What we’re talking about today is something that’s weighing down family budgets: unnecessary hidden fees, known in the parlance as ‘junk fees’, are hitting families at a time when they can’t afford it. They shouldn’t be paying it anyway, in my view – but at a time when they can’t afford it,” the US president said.
Present at the meeting was Rohit Chopra, the director of the Consumer Finance Protection Bureau (CFPB), a US government agency responsible for consumer protection in the financial sector.
In an interview with the Guardian, the Biden appointee said his organization has already taken steps to eliminate these so-called “junk fees”.
“Junk fees are creeping across the entire economy. And one major place that Americans experience it is in their financial life when dealing with their bank accounts and other loans. We’ve all already started to hear from the public on all the types of financial fees that they’ve been hit with – and many people don’t even know if they’re getting any service at all. They don’t have any understanding on how the price was set. And in many cases, they don’t even want the so-called service that’s being provided,” he said.
While the Biden administration doesn’t have the broad sweeping authority to force a cellphone company to cut contract termination fees or prevent a Harry Styles fan from being charged a “convenience fee” by a concert ticket vendor, it can direct federal departments and agencies to concentrate efforts in the specific sectors they operate.
Agencies like the CFPB have authority over banks, credit unions, loan servicers and debt collection agencies, where junk fees also predominate. Another federal entity, the Department of Transportation, headed by Pete Buttigieg, is also cracking down on airline fees associated with seat selection, baggage and rebooking.
“We’ve already issued some policies on a host of them. One is pay-to-pay fees, where debt collectors charge you a fee for paying them. Then there’s other ones that we’ve identified, [like] overdraft, but another fee is a so-called ‘NSF fee’, or non-sufficient funds fee, and that’s where you get charged when you supposedly don’t have enough money in your bank account,” he said.
A report published by the CFPB estimates that there are $12bn in credit card late fees being charged. Chopra said the goal here is transparency in pricing and healthy competition in the sector.
“What I want to see in the market is competitively priced services. We want to make sure that people are competing up front, rather than imposing gotcha fees on the back end. That creates a marketplace where people can choose more wisely. And too often across the economy, we see products and services advertised as ‘free’, but there are really costs baked in the back end of it.”
Top of many Americans minds right now is high inflation, and the inability to keep up with the cost of regularly occurring monthly payments such as utility bills and mortgages when the costs of things like food or running a car are rising. The Biden administration and Chopra believe eliminating many of these fees will mitigate some of the problems caused by inflation, especially as the country braces for key midterm elections in November.
“I will also say that this is really particularly important, as people are facing increased costs. Across the board, people are paying more of their income for housing. The cost of cars has gone up because of the global chip shortage. And, of course, we’re dealing with inflation. But these are long-standing problems that [make] many people feel sick and tired.”
This year, some banks took initiative to do away with NSF and overdraft fees on their own after the CFPB published a report on banks’ dependence on these fees which predominantly hurt customers from a lower socioeconomic background. Shortly after, Capital One, Citibank, and others eliminated these fees. Capital One lost an estimated $150m in annual revenue as a result of this measure. Wells Fargo and Bank of America eliminated NSF fees, but maintain an overdraft fee.
According to the CFPB, Wells Fargo earned $1bn while Bank of America raked in over $800m in overdraft and NSF revenue from January through September 2021. The CFPB is also ordering Regions Bank to pay $191m for “illegal surprise overdraft fees”.
“I’m really encouraged that banks are starting to compete, and not just looking to all charge the same high fee. And in many cases, more people are asking the question, I thought, but all of this new technology was supposed to make costs lower. And why is that not being reflected in these fields?”
But it is not easy.
“The devil really is in the details. It’s not just how big the fee is. It’s also behind-the-scenes systems that are triggered, bring them for people. I still think there’s more we need to look at, but I am encouraged that the direction the industry is moving,” Chopra said.
But if companies catch wind of a government crackdown on these hidden fees, won’t they just raise the price of goods and services on the whole?
Rafi Mohammed is an economist and pricing strategy consultant. He said if forced to disclose prices upfront instead of offering goods and services a la carte, like in the case of airlines selling airplane seats or baggage as a separate cost, Biden’s policy could lead to companies raising prices on the whole.
Mohammed advocates for getting rid of unavoidable hidden “gotcha” fees (convenience fees, for example) tacked on at the end of a sale, but argued those should be considered distinct from separate prices for different products. Not everyone carries luggage while traveling, so why should they pay for those who do, he argues.
“Eliminating the so-called ‘junk’ fees that President Biden has mentioned will lead to higher overall prices. Consumers will end up paying for additional features that they do not want as well as absorbing costs that they are not responsible for.”
Chopra said that’s not the case.
“We’re not seeing that. What we’re seeing is the results of more competition. We’re seeing that people are competing down these fees and being more clear about the total cost. And a competitive market often leads to more benefits for consumers. That’s what we’re hoping to see.
“If the question is will companies pack on new junk fees? Sure, some will. But that doesn’t mean that we should not really go after illegal practices and not want to look for ways that the market can be more competitive.”
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Sanaa has been free of air strikes during the truce, which began in April and ended on October 2. (photo: Khaled Abdullah/Reuters)
The truce lasted for six months and expired on October 2, with efforts to renew it unsuccessful so far.
So, when it became apparent earlier this week that the United Nations-brokered six-month truce that had significantly reduced hostilities on the country’s front lines would not immediately be renewed, residents of Sanaa, the country’s rebel-held capital, immediately resorted to tried and trusted coping mechanisms.
Petrol stations were full; fuel supplies may be stable, but Yemenis have learned the hard way that they have to be prepared.
“I wasn’t worried about petrol throughout the ceasefire as it was available in all petrol stations,” Mokhtar Saleh, a 25-year-old minibus driver in Sanaa, told Al Jazeera. “But when I heard about the failure of the truce renewal, I darted to the station to fill up my bus.”
Saleh was worried. No fuel means no work. And in a country like Yemen, already impoverished before the conflict started, there are few safety nets.
“If the petrol tank of my vehicle is empty, my four children and I will go to bed with empty stomachs,” he said. “This is my sole source of income, and the resumption of the war will bring us hunger.
“The continued failure of the attempts to extend the truce is horrible, and is a bad sign for us.”
The truce expired on October 2 and has yet to be renewed, despite efforts by the UN to sign parties in the conflict on to a new deal.
Fuel imports into Hodeidah, the main port of entry for fuel and other goods into Yemen, had increased since the start of the ceasefire in April, positively affecting the livelihoods of Yemenis and stabilising the price of essential goods.
During the ceasefire, the number of civilian deaths declined by 60 percent, and displacement nearly halved, according to the UN.
The main dividing line in Yemen’s civil war is between the Yemeni government, backed by a Saudi-led military coalition, and Iran-allied Houthi rebels. However, other groups are also involved in the conflict, including United Arab Emirates-backed separatists in the south.
While a truce significantly reduced fighting in the country, the UN has been unable to get the government and the rebels any closer to a lasting peace deal that would end the conflict.
Brief calm
The six months of relative calm allowed some Yemenis to dream of a better future.
Basheer Nasser opened a bakery in Sanaa two years ago but had struggled due to a shortage of cooking gas.
“I used to close the bakery when the cooking gas was unavailable or highly expensive,” Nasser told Al Jazeera. “I also bought firewood to manage the shortage. It made me consider giving up on this business.”
That all changed after the truce began in April.
“Days after the truce declaration, my business improved,” said Nasser. “It was easier to find and buy cooking gas at a reasonable price. I have not closed my bakery for even one single day since then, and profits have been good.”
Yunis Saleh, a grocery store owner in the al-Thawra district of the city, reasoned that the truce had boosted businesses – the flow of goods had increased, and prices had not risen.
“The conflict makes people unwilling to spend because they fear more rainy days ahead,” said Nasser. “Only those who are wealthy or war profiteers see no value in the truce.”
While there has been no major uptick in violence since the truce expired, the Houthi rebels have threatened to attack oil companies operating in Saudi Arabia, the UAE and Yemen. Houthi military spokesman, Yahya Saree, said the group was ready for another round of fighting.
Meanwhile, the Yemeni government is adamant that fighting is the only way to defeat the Houthis.
On Monday, after the truce had expired, the military’s chief of staff, Sagheer bin Aziz, said that “military force alone” would end the war, and establish peace in the country.
Efforts by the UN and the United States, among others, have continued to renew the truce.
While the Yemeni government has indicated its support for a continuation of the ceasefire, despite frustration at the continued Houthi blockade of Yemen’s third-largest city Taiz, the Houthis, according to the US special envoy for Yemen, have not.
Instead, the Houthis have made “maximalist and impossible” demands, Tim Lenderking said.
The Houthis, for their part, said that discussions had reached a “dead end”.
For now, some of the main gains of the truce, such as the increase in fuel shipments to Hodeidah, and flights to Sanaa International Airport resuming, have held.
But that does not mean that civilians in Sanaa are not worried that heavy fighting, and the Saudi air attacks that used to hit their city, might return.
“The Houthis are confident in their military abilities, and demanded tough conditions for the truce to be extended,” Saleh, the minibus driver, said. “They want to win militarily. But what we hope for is for weapons to be fully silenced in Yemen.”
In 2018, California voters passed a state ballot measure to ban the sale of pork from sows confined in gestation crates. Next week, the Supreme Court will hear oral arguments in a case that challenges the law. (photo: Humane Society of the United States)
Californians passed a landmark law that bans cages for pigs. Now the Supreme Court could overturn it.
The case — National Pork Producers Council v. Ross — hinges on a simple question: Can California set its own standards for how pigs are treated on farms, even when they’re raised in other states?
The case centers, quite literally, on how sausage gets made in the US. Each year, over 6 million female breeding pigs, or sows, are raised in “gestation crates” — narrow metal crates that confine the pigs so tightly they’re unable to turn around for the duration of their four-month pregnancies (and they have about four pregnancies in their three- to four-year lifetimes). As the pioneering animal welfare scientist Temple Grandin once put it, the crates are akin to forcing a human to live much of their life in an airline seat.
The American Public Health Association says confining pigs so intensively also increases their stress levels and weakens their immune systems, which makes them more susceptible to infectious disease. (And given the ease with which some zoonotic viruses can pass from swine to humans, that threatens us as well.)
In 2018, over 62 percent of California voters supported a state ballot measure called Proposition 12 that would ban the crates and require sows be raised with at least 24 square feet of space. Importantly, the measure applied whether or not the pigs had been raised in California, so all whole, uncooked pork sold in the state would be required to be produced according to California’s standard. Given the vast size of the state’s market, it’s having a transformative effect for pigs across the country — just as California’s stricter emissions standards for automobiles have changed the way cars are made nationwide.
The law has similar provisions for cage-free eggs and crate-free veal, which have already gone into effect — the challenge in the Supreme Court only covers pork, which will go into effect in five months. (Disclosure: The ballot measure effort was led by the Humane Society of the United States, an organization I worked for from 2012 to 2017.)
The win was a watershed moment for the movement against factory farming, with some 1 million pigs, 40 million hens, and tens of thousands of calves to be taken out of cages each year once the law is fully implemented. It also built momentum to banish cages for hens from other states in the following years.
“What may seem like a small, incremental change on paper, to the life of that pig, it’s immense,” says Chris Green, executive director of Harvard Law School’s animal law and policy program.
The agriculture industry backlash was inevitable, asserting it would cost pork producers $293 million to $347 million to comply — a cost they said would invariably raise the price of pork not only for Californians, but for all Americans. In the years after it passed, meat trade groups filed three separate lawsuits against the pork provision. Each challenge argued the same point: California’s ban imposes an unfair burden on out-of-state pork producers, who produce most of the pork sold in California. (California produces a lot of dairy and eggs but less than 1 percent of the nation’s pork, while consuming around 13 percent of it.)
The pork producers argued that retrofitting their barns to be crate-free would be too costly, and that they couldn’t easily segment crate-free pork from crated pork they might be able to sell in other states. That purported inability forces them to raise more of their pigs crate-free than needed, a cost they say will have to be passed on to consumers nationwide. However, several major pork producers now say they can comply (more on this later).
All three lawsuits were dismissed by lower courts, but the Supreme Court took up the one filed by the National Pork Producers, the industry’s main trade group, and the American Farm Bureau Federation, an insurance company and agriculture lobbying group.
While it might be easy to assume that a conservative-dominated Court will rule in favor of business interests, it’s hard to predict how the case will ultimately turn out. Animal welfare questions don’t adhere to party lines as neatly as you’d think. Democrats are only a little more likely to say cruelty to farm animals is a moral concern, and plenty of red and purple states have passed laws to reduce the suffering of farm animals. A group of conservative thinkers filed an amicus brief in support of California’s animal welfare law while Biden’s Justice Department filed one in opposition.
“Anyone who says they know what’s going to happen is lying to you or themselves,” says Green.
The Court’s ruling won’t be delivered for months, but wherever it lands will have long-term effects on the welfare of the animals we factory-farm for food, potentially setting back the movement to improve their conditions by decades — or propelling it forward.
The pork industry’s contradictory argument against California, explained
The animal welfare activists have a straightforward case: Pigs and other animals raised for food are thinking, feeling animals — like dogs and cats — and shouldn’t be treated like mere widgets in a factory. Plenty of scientific research has concluded what is intuitive to laypeople: Confining animals in tiny cages for years on end is really bad for their well-being, as noted by the 378 veterinarians and animal welfare scientists who filed an amicus brief in support of California’s law.
That straightforward case has been successful at chipping away at the practice of cage confinement: 14 states have banned cages to some degree, especially for egg-laying hens, and hundreds of food companies have been switching to cage-free eggs. In 2008, under 5 percent of hens were raised cage-free; today, 35 percent are. The egg industry now welcomes a cage-free future, with the biggest producers investing heavily in cage-free barn construction, generally not opposing cage-free state legislation, and in some cases even supporting it.
But the pork industry hasn’t been so amenable to change, and has continually invoked a legal doctrine called the dormant commerce clause to challenge California’s law. As I wrote in an explainer last year about the industry’s lawsuits against Prop 12:
The industry’s core argument is that Prop 12 violates the “dormant commerce clause,” a legal doctrine meant to prevent protectionism, or states giving their own businesses preferential treatment over businesses in other states. Industry groups argue that because most US pork is produced outside California, the financial and logistical burden of complying with Prop 12 falls mostly on out-of-state producers, and that those burdens outweigh any of the law’s supposed benefits.
On the surface, they have a point. Overhauling the housing of a million pigs or more is a costly logistical nightmare. Many crate-free sows today are raised with 16 or 18 square feet of space; California’s law requires 24 square feet. Adapting to a patchwork of norms and regulations isn’t easy.
In a separate but similar lawsuit filed by the North American Meat Institute in 2019, a spokesperson for the largest US pork producer, Smithfield Foods, wrote (under penalty of perjury): “It is no exaggeration to state that the expense and complications of complying with Proposition 12 may cause Smithfield to conclude it is no longer viable to do business in California.”
Other major pork producers similarly wrote in the lawsuit that compliance with Proposition 12 would be just too costly and would significantly hamper their operations. Some went so far as to say, like Smithfield Foods, that it may force their partial or total exit from the California marketplace.
But now many in the industry say they can comply, including five of the largest pork producers: Tyson Foods, Smithfield Foods, Seaboard, Hormel, and Clemens Food Group. It’s a confusing course reversal that also weakens the National Pork Producers Council’s argument that Prop 12 is overly burdensome.
Jim Monroe, vice president of corporate affairs for Smithfield Foods, says he doesn’t see any inconsistency between the statements, writing in an email that “there is no doubt it will be more challenging to supply Californians with affordable pork with this law in place.” Monroe said the regulatory climate and escalating cost of doing business in California were factors in Smithfield Foods’ recent decision to shutter its Los Angeles County slaughterhouse. “The standards proposed are arbitrary, not based on science and require considerable time and expense without yielding any improvements to animal care,” he added.
(The National Pork Producers Council and Tyson Foods declined an interview request for this story; Hormel and Clemens Food Group did not respond to a request for comment.)
Even California says big pork producers are hard at work to comply. As noted by Civil Eats, an official with California’s state agriculture agency visited 10 hog farms and slaughter plants across the country over the last year and reported that some of the nation’s largest pork producers were constructing new barns and overhauling old ones to be California-compliant, and had already implemented tracing systems to separate conventional pork from the California-bound pork.
While the National Pork Producers Council has written a great deal about the difficulty of tracing California-compliant pork, the largest producers have long advertised their sophisticated traceability systems. As Richard Sexton, a UC Davis agricultural economist, recently told the Guardian, “Products are being differentiated in a whole variety of ways: organic, GMO-free, different properties related to animal welfare, antibiotic-free.”
The increased cost for Californians will be somewhat modest, around an 8 percent hike, according to Sexton and two colleagues, and almost no change in retail price outside California. In an amicus brief to the Court, Sexton and another UC Davis economist also stressed that the pork producers’ claim that the costs of Prop 12 compliance would be felt by all pork producers, not just those selling into California, is flat-out wrong: “Not only are [the pork producers’] arguments flawed as a reflection of basic economic incentives, but they are factually implausible.” Their research was funded, in part, by the National Pork Board, a USDA-administered program that promotes US pork, as well as the California Department of Food and Agriculture.
The price increase may be tough for Californians at a time of high inflation, especially for food, but it’s important to remember that the price of conventional meat is artificially low, due to animals who are forced to live in the most miserable conditions imaginable, and to workers who toil in dangerous conditions to raise and slaughter them. Rural citizens who live near hog farms also bear the brunt of the industry’s lightly regulated air and water pollution.
How the conservative Court might think about the case — and animal welfare
It wouldn’t be a shock if all or most of the conservative justices side with the meat industry, as several business groups (like the Chamber of Commerce) and 20 mostly red state attorneys general filed an amicus brief in support of the pork producers (15 attorneys general from mostly blue states filed an amicus brief in support of California). California is also the right wing’s favorite punching bag.
But there are some reasons to believe that the justices won’t rule along predictable political lines. Justice Clarence Thomas has said the dormant commerce clause — the legal doctrine continually invoked by the pork producers to argue its case — “has no basis in the text of the Constitution, [and] makes little sense.” Justice Neil Gorsuch has called it a source of “judicial activism.” At the same time, the liberal Justice Elena Kagan wrote the decision when the Court struck down a California farm animal welfare law in 2012, and in 2010, when the Court struck down a federal animal cruelty law, the conservative Justice Samuel Alito dissented.
And animal welfare hasn’t been as ensnared in the culture war as other issues on the Supreme Court’s docket, such as immigration and affirmative action. That becomes clear when reading the amicus brief in support of California’s animal welfare law written by Megan Wold, a former law clerk for Alito. The brief was filed on behalf of other conservative thinkers, including former George W. Bush speechwriter Matthew Scully, University of Notre Dame law professor O. Carter Snead, and writer Mary Eberstadt.
Wold wrote that voters’ support for Proposition 12
reflects concerns of ancient lineage in Western moral thought. Western philosophers and religious leaders have considered the treatment of animals to be an appropriate and important subject of inquiry for millennia. They have explained how human decency demands that animals be treated with basic respect for their needs, natures, and dignity as living creatures, and why humans are morally bound not to participate in or facilitate animal abuse.
Last week, the Washington Post conservative columnist Kathleen Parker also made a passionate plea for the Court to side with the animals, writing “... the justices that make up the high court’s conservative majority have a rare opportunity to align themselves not only with their liberal counterparts but with some of history’s greatest ethicists and philosophers.”
Fervent support for animal welfare is not uncommon among conservatives: Bob Dole championed important amendments to the Animal Welfare Act in 1985; Rick Santorum may be vehemently opposed to LGBTQ rights but is also vehemently opposed to cruelty to dogs and horses. Even if their primary motive is to slash government spending, dozens of Republican members of Congress have voted to curtail government-funded animal research experiments in recent years.
While Big Pork is behind the challenge to California’s animal welfare law, many farmers (who tend to be conservative) are in support of the law, saying that it could help level the playing field in an industry that is dominated by meat giants that cut costs by mistreating animals. One of the largest meat companies, Perdue Farms, also supports the animal welfare law (Perdue mostly raises chickens for meat but also owns Niman Ranch, a higher-welfare pork company).
If the Court does side with the National Pork Producers Council, it could have lasting, devastating consequences for the future of farm animal welfare in the US. It would not only condemn nearly a million pigs a year to extreme confinement, but it could also inspire others in the animal agriculture industry to challenge similar state laws, or dissuade state lawmakers and food companies from moving on the matter. Some observers say the effects could be felt far beyond animal welfare, too, endangering state laws that cover renewable energy or product safety.
In the past two decades, we’ve witnessed a rapid shift away from cages, supported by voters, consumers, corporations, and policymakers of a number of political stripes. If California’s animal welfare law is eventually overturned, it will certainly be a setback for the anti-factory farming movement, but not the death knell.
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