The Supreme Court’s Stealth Attack on Expertise Helps Pave the Way for Authoritarianism

Posted in: Politics

Something important has been dying in America. In The Death of Expertise, Naval War College professor Tom Nichols observed in 2017 that “Americans have reached a point where ignorance . . . is an actual virtue.” Nichols connected the elevation of ignorance with the failure to acknowledge expertise as “anything that should alter our thoughts or change the way we live” and the collapse of the distinction between facts and opinions.

With the prolongation of the COVID-19 pandemic in America, we see Nichols’s prescience. A substantial plurality of citizens have bought into the attacks on experts like Tony Fauci as well as the anti-vaxx disinformation and ignorance that has left so many Americans dead or unwell.

On January 13, in National Federation of Independent Businesses v. Department of Labor, the Supreme Court’s conservative majority cast its lot with the anti-vaccination Republican base, its mistruths, and the attack on expertise. For the Court, it was convenient that doing so would serve its larger partisan agenda.

Degrading expertise is a necessary component for dismantling the “administrative state,” a long-term right-wing project that would tear down the institutions, agencies, and offices by which the government implements protective public policy.

And so, in the course of staying the Biden administration’s “get vaccinated-or-be-tested” mandate in businesses employing more than 100 workers, the National Federation majority laid the groundwork for stripping the country of the great benefit that federal agencies’ specialized knowledge brings to complex policy issues. Rather than following Chevron v. NRDC—the precedent conservatives love to hate—or even citing it, the Court refused to defer to agency expertise. In Chevron, Justice John Paul Stevens recognized that deference is important because “[j]udges are not experts in the field and are not part of either of the political branches of government.”

In place of such deference, the conservative majority continued with 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]he need for policy makers to seek expert advice has grown dramatically over the last century, driven by growth in the volume, range and specialization of subjects in the public policy domain.” The Congressional Research Service explains that “Congress delegates rulemaking authority to agencies [because] agencies have a significant amount of expertise and can ‘fill in’ technical details of programs that Congress created in statute.”

Simply put, “Competence is critical to democracy.”

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

It should come as no surprise that today’s business tycoons pay to promote the idea that regulatory agencies, and the experts in them, are evil. Take billionaire Charles Koch, chief funder of right-wing causes such as the Tea Party movement. His wealth traces to his father’s oil & gas business, still a mainstay of Koch Industries.

Small wonder that so much of his and his deceased brother’s political advocacy took straight aim at federal regulatory agencies such as the Environmental Protection Agency. Their well-heeled political advocacy arm has regularly published newspaper op-eds with titles such as “Protect taxpayers from EPA,” and “Protect power grid from EPA mandate” or “Arizona should fight useless coal regulations.” Seeding climate change denial has been central to the Koch strategy.

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

In 2018, shortly after Justice Neil Gorsuch’s nomination, Mark Holden, Koch’s general counsel, penned a D.C. op-ed attacking those who “lean on the expertise of the administrative state.” Holden thanked then-President Trump for nominating judges “who are wary of federal agencies. . . .”

Therein lies the rub. The Koch Brothers spent lavishly on national public relations campaigns to support the confirmations of Justice Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh. The Kavanaugh campaign alone “ran into ‘seven figures.’”

Stepping back, it is not hard to see how political spending to ensure a right-wing Court, the attack on the administrative state and antagonism toward expertise converge in a larger anti-democratic movement. “The erosion of respect for facts, logical analysis, and critical thinking” disables citizens from knowing what to believe and makes them dependent upon demagogues projecting strength, simplicity, and self-assuredness to fill the gap. Sowing factual confusion is what “fake news” is all about.

As Hannah Arendt wrote in her 1951 book The Origins of Totalitarianism, “The ideal subject of totalitarian rule is not the convinced Nazi or the convinced communist, but people for whom the distinction between fact and fiction (i.e., 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.” Sadly this seems like an apt characterization of today’s Supreme Court.

Arendt was writing about Hitler and Stalin. When the Soviet dictator—reflecting a piece of history we see repeating today—sought to take over Ukraine, his early steps involved eliminating those committed to truth-telling: Ukrainian “scientists, engineers, managers, doctors, teachers.”

It was the same for Hitler when he invaded Poland. “[F]rom the first days of the war, scientists, teachers, lawyers, doctors and civil servants were killed in occupied Poland.” Similarly, in 1975, when the ruthless Pol Pot’s Khmer Rouge regime took over Cambodia, “Lawyers, doctors, teachers, engineers, scientists and professional people in any field were murdered.”

Destroying expertise is an early step on totalitarians’ march to displacing any truth but their own. Placing masses of citizens in a state of factual disequilibrium facilitates division and conquest. As Samantha Rose Hill, Hannah Arendt’s biographer has written, “Truth-telling is related to our understanding of the common realm of human existence, our ability to . . . share our experiences with one another.” The cost of the distrust of knowledge “has been the common fabric . . . from which we take our bearings in the world.”

Hence, the apocryphal poster plastered on the walls of the allegorical totalitarian state leaders depicted in Orwell’s 1984 stated: “War is peace. Freedom is slavery. Ignorance is strength.”

Which brings us back to Nichols’s insight that we’ve reached the point where “ignorance . . . is an actual value.” To help arrive at that end-game in the domain of public policy, we have the best anti-regulatory, anti-expert Supreme Court majority that money can buy.

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