Supreme Court stealth attack on expertise paves way for authoritarianism | Austin Sarat | Verdict

Something important is dying in America. In The death of know-how, Tom Nichols, a professor at the Naval War College, observed in 2017 that “Americans have reached a point where ignorance. . . is a real virtue. Nichols linked the rise of ignorance to the failure to recognize expertise as “anything that should alter our thoughts or change the way we live” and the breakdown of the distinction between fact and opinion.

As the COVID-19 pandemic continues in America, we see Nichols’ prescience. A substantial plurality of citizens have bought into the attacks on pundits like Tony Fauci and the anti-vaxx misinformation and ignorance that has left so many Americans dead or sick.

On January 13, in National Federation of Independent Businesses c. Department of Labor, the conservative majority on the Supreme Court has set its sights on the Republican anti-vaccination base, its lies and the attack on expertise. For the Court, it was convenient that this served its larger partisan agenda.

Degrading expertise is a necessary element in dismantling the “administrative state,” a long-term right-wing project that would destroy the institutions, agencies, and offices through which government implements protective public policy.

And so, as part of maintaining the Biden administration’s “get vaccinated or tested” mandate at companies employing more than 100 workers, the National Federation majority laid the groundwork to deprive the country of the great advantage that the specialized knowledge of federal agencies brings to complex political issues. Rather than follow Chevron vs. NRDC— which previous Tories love to hate — or even citing it, the Court refused to defer to the agency’s expertise. In ChevronJustice John Paul Stevens acknowledged that deference is important because “[j]the judges are not experts in the field and are not part of any of the political branches of government.

Instead of such deference, the conservative majority continued its anti-regulatory mission and “attacked the modern administrative state as a threat to liberty. . . .” But as researchers Matthew Thomas and Luke Buckmaster have written, “[T]The need for policymakers to seek expert advice has increased dramatically over the past century, due to the growth in volume, range, and subject specialization in the public policy arena. The Congressional Research Service explains that “Congress delegates regulatory authority to agencies [because] the agencies have significant expertise and can “fill” the technical details of programs that Congress has created into law.

Simply put, “competence is essential to democracy”.

The conservative attack on regulatory agencies and the expertise they represent does not stem from a love of democracy. Rather, it stems from Republican economic theory that wealth trickles down from the super-rich when they are allowed to freely pursue their own financial gain without government interference.

It’s no surprise that today’s business moguls pay to promote the idea that regulators, and their experts, are bad. Take billionaire Charles Koch, a leading funder of right-wing causes such as the Tea Party movement. His wealth dates back to his father’s oil and gas business, still a mainstay of Koch Industries.

It’s no wonder that so much of his political advocacy and that of his late brother was aimed directly at federal regulatory agencies such as the Environmental Protection Agency. Their well-heeled political advocacy arm has regularly published newspaper articles with titles such as “Protect EPA Taxpayers” and “Protect the Power Grid from EPA’s Mandate” or “Arizona Should Fight unnecessary coal regulations”. Sowing climate change denial has been central to Koch’s strategy.

Another part of Koch’s strategy has been to ensure that the right kind of judges are appointed to the nation’s courts, especially to the Supreme Court.

In 2018, shortly after Judge Neil Gorsuch was appointed, Mark Holden, Koch’s general counsel, wrote a DC op-ed attacking those who “rely on the expertise of the administrative state.” Holden thanked President Trump for appointing judges “who distrust federal agencies. . . .”

This is where the problem lies. The Koch brothers have spent lavishly on national public relations campaigns to support the confirmations of Judge Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. Kavanaugh’s campaign alone “hit ‘seven figures'”.

With hindsight, it’s not hard to see how the political spending on securing a right-wing court, the attack on the administrative state, and the antagonism to expertise converge in a larger anti-democratic movement. “The erosion of respect for facts, logical analysis and critical thinking” leaves citizens uncertain about what to believe and makes them dependent on demagogues who project strength, simplicity and self-assurance to fill the void. Sowing factual confusion is what “fake news” means.

As Hannah Arendt wrote in her 1951 book The origins of totalitarianism“The ideal subject of the totalitarian regime is not the staunch Nazi or the staunch Communist, but people for whom the distinction between fact and fiction (that is, the reality of experience) and the distinction between true and false (i.e. the standards of thought) no longer exist.”

“Political power”, she warned, “will always sacrifice factual truth for political gain”. Unfortunately, that seems like an apt characterization of today’s Supreme Court.

Arendt wrote about Hitler and Stalin. When the Soviet dictator – a reflection of a piece of history we see repeating itself today – sought to take control of Ukraine, his first steps involved eliminate those who promise to tell the truth: Ukrainian “scientists, engineers, managers, doctors, teachers”.

It was the same for Hitler when he invaded Poland. “[F]From the first days of the war, scientists, teachers, lawyers, doctors and civil servants kill in occupied Poland. Similarly, in 1975, when Pol Pot’s ruthless Khmer Rouge regime took control of Cambodia, “lawyers, doctors, teachers, engineers, scientists and professionals in all fields were assassinated”.

The destruction of expertise is a first step in the march of the totalitarians to displace all truth except their own. Placing masses of citizens in a state of factual imbalance facilitates division and conquest. As Samantha Rose Hill, Hannah Arendt’s biographer, wrote, “Telling the truth is tied to our understanding of common domain of human existence, our ability to . . . share our experiences with each other. The cost of distrust of knowledge “has been the common fabric. . . where we orient ourselves in the world.

Hence the apocryphal poster pasted on the walls of the allegorical totalitarian heads of state depicted in Orwell’s 1984 said, “War is peace. Freedom is slavery. Ignorance is strength.”

Which brings us back to Nichols’ idea that we’ve reached the point where “ignorance. . . is a real value. To help bring about that endgame in the realm of public policy, we have the best anti-regulatory, anti-expert Supreme Court majority that money can buy.

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