Last week, after the victory of Democrat Doug Jones in Alabama’s senatorial election, the media began reporting that the Republican party was facing an epic disaster. Citing insider talk of a “political earthquake” and a “party in turmoil,” the Washington Post anticipated a Democratic takeover of Congress in 2018.



A year that began with dark premonitions of a fascist seizure of power, an autocrat’s total control of the state, seemed ready to end with sunny predictions of the Republican party losing one branch of the federal government to the opposition and a stalled rightwing agenda in Congress.

One week later, after the victory of the Republican tax cut, the media has changed its tune. “The Republicans demonstrated their control of Washington on Wednesday,” the New York Times gushed. Trump, a Times headline read: “Flexes Republican Muscle”. Axios’s Mike Allen swooned over “Trump’s triple dip”: the tax cuts, opening up the Arctic national wildlife refuge to oil drilling, and getting rid of Obamacare’s individual mandate.

Last week, it was all over for Trump. This week, he’s the emperor of the future. Unless the Republicans suffer another reversal in the next few days, expect the year to end with claims – exultant from the right, fearful from the left—of the coming rightwing-a-palooza.

1. Even an idiot can cut taxes



Nothing in the tax cut changes my view that the Republican party and the conservative movement are weak and incoherent. Everything that was true last week is still true today.

This is a massively unpopular president leading a massively unpopular party. Despite having total control of the federal government, that massively unpopular party has lost two significant elections in southern states, failed to repeal the signature achievement of the Obama administration, and, despite grand resolutions, has yet to push through any of the spending cuts it has long dreamed of.

The party’s greatest (and only) legislative accomplishment this year is the passage of a massively unpopular bill that most people don’t even think will help them.

Back in January, I wrote Trump would find it nearly impossible to move legislation though Congress, revise US foreign policy, or remake the Republican party in his (or Steve Bannon’s) image as a pseudo-workers’ party of economic nationalism. I did predict, though, that he and the Republicans would enjoy two key victories: tax cuts and deregulation.



With the passage of the tax cuts, that’s turned to be true. But it didn’t take any gift of prophecy to see it.

Like Trump, George W Bush lost the popular vote in 2000. Unlike Trump, Bush only won the electoral college because of the US supreme court. Despite that added spice of illegitimacy, despite having smaller majorities in both houses of Congress (razor-thin in the Senate, almost razor-thin in the House), Bush still managed to push through massive tax cuts – and, unlike Trump, got 40 Democrats to vote with him. A full six months sooner than Trump did.

Cutting taxes is in the Republican DNA. Even an idiot can do it.

2. When Trump’s tweets fade, his judges will still be here



If I had a chance to revise my January list of Trump’s expected successes, I’d have added one item: appointing judges. Since the spring, it’s been clear that Trump is stacking the judiciary at a record rate.

It’s true that in this past week, Trump was forced to withdraw three of his nominees to the federal bench. (Reagan, by contrast, didn’t suffer a major defeat on that front till 1986, when the Senate judiciary committee refused to approve a nominee by the name of Jefferson Beauregard Sessions III.) But overall, Trump has been reshaping the judicial branch with uncharacteristic dispatch and focus.

Liberals and leftists often worry about Trump’s assault on the independence of the judiciary, his contempt for the rule of law, and his attack on the constitution. Those fears fit with a view of Trump as an extra-parliamentary street fighter, a fascist or proto-fascist rallying the masses against democratic norms and established institutions.

Yet long after he’s gone, what we’ll be hearing from Trump won’t be his nasty tweets or vicious speeches. The voice we’ll be hearing – the signal act that will most preserve his legacy, that will most impose his present will on future prospects – will be that of the judges he’s now appointing.



The rightwing takeover of the US court system will transform America | Paul Butler Read more

Independent judges, applying their understanding of the constitution to their interpretation of what the rule of law requires, over and against the wishes of whatever a future Congress or president may enact.

3. The Four Horsemen of the future



During the first and second terms of Franklin Roosevelt’s presidency, the US supreme court struck down bill after bill that Roosevelt and the Democrats had passed in their desperate bid to bring some semblance of democratic control to the American economy.

So odious, revanchist, and out of step were the court’s anti-New Dealers, they were dubbed the Four Horsemen. Sporting names like Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter, they looked like they had walked off the set of Gone With the Wind. A throwback in every way, they had been appointed at least a decade – in some cases, two – before Roosevelt’s transformative election of 1932. Collectively, they ruled for 85 years.

Ladies and gentlemen, I give you the Four Horsemen of the future.



4. What a bad judge looks like



Up until this week, I’d have cited rightwing judge Alex Kozinski of the US court of appeals, one of the most influential justices on the federal bench, as an example of what to expect from the Four Horsemen of the future.



Sure, he’s 67, but with his insouciant wit and boyish enthusiasm – captured in this creepy clip from 1968 – he seems to possess the eternal youth and vigor of the prototypical Trumpist justice.

But after having been accused of sexual harassment and misconduct by 15 women, many of them former law clerks and employees, Kozinski resigned from his position on Monday.



Still, his record – and retirement – offers us a preview of the future.

One of Kozinski’s most prominent accusers is Heidi Bond, who’s given a fuller description of Kozinski’s rule, sexual and non-sexual, in the workplace.

One day, my judge found out I had been reading romance novels over my dinner break. He called me (he was in San Francisco for hearings; I had stayed in the office in Pasadena) when one of my co-clerks idly mentioned it to him as an amusing aside.

Romance novels, he said, were a terrible addiction, like drugs, and something like porn for women, and he didn’t want me to read them any more. He told me he wanted me to promise to never read them again.

“But it’s on my dinner break,” I protested. He laid down the law – I was not to read them anymore. “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

Kozinski’s demands may seem peculiar, but the tyranny is typical. Employers control what workers read, when workers shit, all the time. But Kozinski has the added distinction of being one of the leading theoreticians of the first amendment. And not just any old theorist: he’s a libertarian theorist – Kozinski has a cameo in the film Atlas Shrugged: Part II – who claims that the first amendment affords great protection to “commercial speech”.

Where other jurists and theorists claim that commercial speech – that is, speech that does “no more than propose a commercial transaction” – deserves much less protection than political or artistic speech, Kozinski has been at the forefront of a rightwing movement claiming that the first amendment affords the same levels of protection to commercial speech as it does to other kinds of speech. Because, as he put it in a pioneering article he co-authored in 1990:

In a free market economy, the ability to give and receive information about commercial matters may be as important, sometimes more important, than expression of a political, artistic, or religious nature.

Watching a commercial about asphalt? Vital to your wellbeing and sense of self. Deciding what books you read during your dinner break? Not so much.

Government regulations of advertising? Terrible violation of free speech. Telling a worker what she can read? Market freedom.

So that’s how we end 2017: on the one hand, a declining movement of the right, increasingly unpopular with the voters, trying to claim a long-term hold on power through the least democratic branch of government.



On the other hand, a rising movement of women and the left, trying to topple ancient and middle-aged injustices, one nasty man at a time.