In this episode of the Let's Find Common Ground podcast, the Common Ground Committee team looks at the growing movement of bridge builders pushing back against the toxic polarization that separates us.
The Supreme Court
The results of a new Gallup poll offer alarming evidence of a serious erosion of confidence in the American judicial system. And if that was not enough of a signal, a survey done by Monmouth University delivered more bad news for people concerned about the rule of law in this country.
It found that almost a quarter of the American public would not be “bothered at all” if the president suspended some “laws and constitutional provisions.” Another quarter would only be bothered “a little.”
Reading these results, I was reminded of the quote from the Pogo comic: “We have met the enemy, and it is us.”
As commentators from Alexander Hamilton to the present have said, the rule of law can only survive if the people have faith that it is applied impartially and equally and that everyone will follow the rules, even when it is inconvenient for them to do so. Faith — that is the right word.
Hamilton understood this.
In Federalist 78, he predicted that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The judiciary, he argued, would “have neither FORCE nor WILL, but merely judgment.”
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The quality of that judgment, he continued, “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of public justice and public security.”
In Federalist 22, Hamilton noted that unless people have faith in judges and respect their judgments, “laws are a dead letter.”
Four years ago, the National Judicial Council, echoing Hamilton, offered advice for people new to the bench. “As a judge,” it said, “you have no ability to enforce the decisions you make. … If you sentence someone to jail, you have no power to make certain that sentence is carried out.”
That is why the council described the power of courts as “fragile” and concluded that the rule of law depends on the willingness of “good people” to “follow the law because that is what good people do.”
The new surveys highlight that fragility and document a dramatic loss of faith in the courts and the rule of law among “good people” in the United States. Let’s start with Gallup.
It summarizes its major findings: “Americans’ confidence in their nation’s judicial system and courts dropped to a record-low 35% in 2024. The result further sets the U.S. apart from other wealthy nations, where a majority, on average, still expresses trust in an institution that relies largely on the public’s confidence to protect its authority and independence.”
“Since 2020,” Gallup continues, “confidence in the courts … has seen a sharp decline -- 24 percentage points.” In fact, the only nations that have seen anything close to such a precipitous decline are “Myanmar (from 2018 to 2022) overlapping the return to military rule in 2021, Venezuela (2012-2016) amid deep economic and political turmoil, and Syria (2009-2013) in the runup to and early years of civil war, and others that have experienced their own kinds of disorder in the past two decades.”
That’s some company for a nation supposedly steeped in the traditions Hamilton initiated.
The bad news does not end there. Gallup reports: "The judiciary stands out for losing more U.S. public confidence than many other U.S. institutions experienced between 2020 and 2024.”
Things don’t look much better in the Monmouth survey. It found stark partisan divides in what respondents would think if the president disregarded the “laws and constitutional provisions to go after political enemies.” Just over one-third of Republicans said, “It wouldn’t bother them at all if Trump suspended some laws and constitutional provisions to go after political enemies, while an additional 34% said it would only bother them ‘a little’ if the incoming president took such a step.”
But, as The Washington Post’s Aaron Blake notes, it isn’t only Republicans who have these views. Trump-leaning independents have also shifted significantly. “Overall, the percentage of independents who say they would be bothered a lot if Trump targeted his enemies has dropped from 68 percent in June, to 60 percent in October, to 55 percent today.”
These results are partially attributable to the fact that the question Monmouth asked named Donald Trump as the person who might suspend the law.
An Ipsos poll done last spring did not refer to Trump when it asked whether “a strong president … should be allowed to rule without too much interference from courts and Congress.” Even so, 52 percent of Republicans said yes.
The Gallup results help explain why many Americans would be okay with presidential departures from the rule of law. If people aren’t confident in courts or have lost faith in the judgments they make, it is hardly surprising that they might be open to such defiance.
Why does the United States find itself in this grim situation?
Many factors could be cited, including questionable ethical judgments by Supreme Court Justices, unpopular judicial decisions, and partisan attacks on courts and judges.
But here, I’d like to suggest that the judiciary has not helped itself in the way it goes about its business. Take the nation’s highest court.
As the journalist Kevin Drumm puts it, “The Supreme Court has always been political, but … it [has never] been so nakedly political.” Drumm is right to say, “They barely even bother trying to hide it.”
In the lower courts, similar things are happening. For example, Alma Cohen of Harvard Law School has shown that “the judges’ political affiliations, inferred from the party of the appointing president, can be used as a predictive tool for decision outcomes in 92% of the circuit court decisions studied.”
And do you think it is an accident that Republican litigants have beat a path to Amarillo, Texas, to get their cases heard by federal District Judge Matthew Kacsmaryk, who New York Democratic Sen. Chuck Schumer calls the MAGA movement’s “favorite judge”? Judge shopping is hardly one-sided. For years, liberals tried to get cases heard in the 9th U.S. Circuit Court of Appeals, which was notorious for the leftward tilt of its decisions.
The American public has gotten the message. More than six in 10 now say that “politics, not law” explains Supreme Court decisions.
Finally, why should anyone respect the court or its justices when they don’t display respect for each other in their written opinions? Just read what Justice Samuel Alito said about the justices who had decided Roe v Wade, which he called “egregiously wrong from the start.”
He accused them of “usurp[ing] the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Or recall Justice Sonia Sotomayor’s suggestion that the court is putting its survival in peril by making decisions that “are just political acts."
Ultimately, we cannot snap our fingers and restore public confidence in courts and faith in the rule of law. But we can call on judges at every level of the court system to stop digging the hole any deeper.
The new polling results should be a wake-up call and a reminder that unless they behave in ways that inspire, rather than undermine, belief in the fairness of their rulings, “good people” may conclude that the rule of law is a hoax. And that is a stepping-stone to authoritarianism.
Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
WASHINGTON, DC — In response to the impending government shutdown deadline, the Senate swiftly passed a bipartisan plan early Saturday. This plan is designed to fund federal operations and provide disaster aid temporarily.
“Tonight, the Senate delivers more good news for America. There will be no government shutdown right before Christmas,” Senate Majority Leader Chuck Schumer (D-NY) said on the Senate floor ahead of final passage.
The House approved the new bill from House Speaker Mike Johnson (R-LA.) by a significant margin, with a vote of 366-34. The Senate also passed the bill, with a vote of 85-11, just after the midnight deadline.
The streamlined 118-page package will fund the government at existing levels until March 14 and includes an additional $100 billion in disaster aid and $10 billion in agricultural assistance for farmers.
Notably, the bill does not include President-elect Donald Trump's request to raise the debt ceiling, which GOP leaders indicated will be discussed next year as part of their tax and border proposals.
Trump derailed bipartisan congressional budget negotiations by dismissing the original proposal, claiming it favored Democrats and was laden with excessive spending. This reaction followed social media posts from billionaire Elon Musk.
Musk urged his followers to "Stop the steal of your tax dollars!" on his platform X, suggesting potential primary challenges for those who supported the budget deal. Trump later echoed this sentiment in his own social media post.
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Rep. Rosa DeLauro (D-CT), the top Democrat on the Appropriations Committee, said it looked like Musk, who is heading up the new Department of Government Efficiency, was calling the shots for Trump and Republicans.
“Who is in charge?” she asked during the debate.
Lawmakers expressed relief after the bill's passage. Still, the narrow escape from a potential shutdown raised concerns among some Republicans about the challenges that may arise next year, particularly with Republicans holding an even slimmer majority in the House and Trump back in office.
President Joe Biden, who maintained a lower public profile during the tumultuous week, anticipated signing the measure into law on Saturday.
Some critics argue that Trump does not share the same apprehension about government shutdowns as lawmakers do, pointing to his role in initiating the longest government shutdown in history during his first term.
A government shutdown occurs when the necessary funding legislation to finance the federal government is not approved before the start of the next fiscal year. During a shutdown, the federal government reduces agency activities and services, halts non-essential operations, furloughs non-essential employees, and retains only essential staff in departments responsible for safeguarding human life or property.
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As co-publishers of The Fulcrum, we are proud to announce that, effective Jan. 1, Hugo Balta, The Fulcrum’s director of solutions journalism and DEI initiatives, will serve as executive editor.
Hugo is an award-winning, 30-year multimedia journalism veteran with multiple market and platform experience, including leadership positions in NBC, Telemundo, ABC, CBS, and PBS, among other storied news networks. A nationally recognized diversity in journalism advocate, he is the recipient of the 2024 Cecilia Vaisman Award from Northwestern University Medill School of Journalism, Media, Integrated Marketing Communications. Hugo is the only person to serve twice as president of the National Association of Hispanic Journalists. Hugo and his family live in Chicago.
He is currently the Publisher of the Latino News Network. LNN’s mission is to provide greater visibility and voice to the Hispanic, Latino community, amplify the work of others in doing the same, mentor and provide young journalists with real work experiences, and apply the principles of solutions journalism in producing stories focused on the social determinants of health, and democracy.
Hugo is also an adjunct professor at Columbia College Chicago, teaching journalism courses. He previously worked as executive editor at the Chicago Reporter, editor at WBBM News Radio, and news director at WTTW Chicago.
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We’ve grown significantly in 2024 and, under Hugo’s leadership, we are confident that our growth will continue as we expand into new areas. We deliver more than 1.4 million web impressions monthly and roughly 380,000 page views per month through our daily newsletter, social media platforms, and numerous other national content-sharing relationships. In addition, in the first eight months of this year, our writings were picked up 3,549 times by local newspapers around the country, which added to our reach considerably.
The Fulcrum is now accredited by Apple News, MSN News, Smart News and the Latino News Network. They pick up our content daily, and we are working to expand our relationship with them and other national platforms in 2025 to engage more citizens on how our evolving democracy can better meet the needs of all the people. We do so by sharing many perspectives to build a pro-democracy constituency of millions of Americans by making it easier to find and act on local and national civic engagement opportunities.
In 2024, we strengthened our working relationship with theMedill School of Journalism at Northwestern University, where young journalists regularly provided reporting for The Fulcrum We are also extremely proud of our working relationship with The OpEd Project, which offers The Fulcrum the opportunity to elevate the ideas and knowledge of underrepresented expert voices to accelerate solutions to the biggest problems facing our nation.
We’d like to give a special thank you to David Meyers, our current executive editor, who has been instrumental in the success of The Fulcrum. David’s vast experience after two decades at CQ Roll Call, a leading publisher of political news and information, was instrumental in guiding The Fulcrum team to the success we are now experiencing. David will be starting a new job in January with OpenSecrets as director of communications and marketing.
Despite our successes in 2024, we will not rest on our laurels. 2025 allows us to solidify further our position as a leading outlet for news and opinion so insiders and outsiders to politics are informed, meet, talk and act to repair our democracy and make it work in their everyday lives. Our dedication to a solutions journalism model will continue as we explore what is dividing us on the issues, what information can be trusted, what is oversimplified about the issues, and the nuances and complexities of the many problems facing our nation.
Please contact Hugo at hugo@thefulcrum.us to submit your op-ed proposal, suggest news stories and news or ask questions.
Becvar is co-publisher of The Fulcrum and executive director of the Bridge Alliance Education Fund. Nevins is co-publisher of The Fulcrum and co-founder and board chairman of the Bridge Alliance Education Fund.
This is the second entry in “Big Tech and Democracy,” a series designed to assist American citizens in understanding the impact technology is having — and will have — on our democracy. The series explores the benefits and risks that lie ahead and offers possible solutions.
Industrial liberty — once a cornerstone of American antitrust policy — has faded into obscurity in the shadow of Big Tech’s overwhelming dominance. In short, industrial liberty refers to your ability to use and benefit from your skills, your knowledge and your passion. It manifests as entrepreneurs and small-business owners, through patents and innovations, and as everyday folks finding good work every day. This erosion of this specific sort of liberty not only undermines the principles of competition but also stifles the aspirational spirit that has for so long distinguished the American public.
By concentrating power and leveraging their dominance to crush competition, companies like Amazon, Google and Meta suppress industrial liberty, extinguishing the incentive for new entrants to challenge the status quo. The result? An economy that serves entrenched monopolies instead of fostering opportunity.
Historically, the public interest standard set forth in Section 5 of the Federal Trade Commission Act was intertwined with industrial liberty. Drafters of the FTC Act wanted to make sure the agency prioritized enforcement actions that had wide-reaching ramifications and that, once resolved, would further industrial liberty. As figures like Justice Louis Brandeis emphasized, this broader policy approach was not just about preventing excessive prices or abusive practices; it was about empowering individuals — producers, workers and consumers alike — to thrive on a level economic playing field. Industrial liberty ensured that individuals could apply their talents and ambitions without being stymied by monopolistic giants. Yet today, the focus of antitrust enforcement has veered away from this principle, favoring superficial metrics and toothless regulatory action that allow Big Tech to dominate unimpeded.
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This shift is exemplified in the Federal Trade Commission’s diminishing adherence to its statutory mandate to act only in cases that serve a “specific and substantial” public interest. As Brandeis asserted, this standard requires more than avoiding private disputes; it demands a clear and measurable benefit to the public. Unfortunately, modern antitrust enforcement often appears blind to this mandate, pursuing cases that fail to directly confront Big Tech’s stranglehold while draining resources on marginal players. When they do seek out Big Tech, enforcers have commonly relied on questionable legal theories with low odds of success. This combination of strategies has left Americans in an undesirable position.
Consider the FTC’s recent complaint against a small generative AI developer accused of enabling deceptive product reviews. The case lacked any evidence of actual harm, let alone a substantial public interest rationale. Meanwhile, tech behemoths use their dominance to undermine competition in emerging markets like artificial intelligence. Instead of targeting these systemic threats, the FTC’s actions often discourage small-scale innovation — precisely the opposite of what industrial liberty aims to protect.
Big Tech’s behavior exemplifies the need for a renewed commitment to industrial liberty. These companies don’t just compete; they engulf entire industries, leveraging their ecosystems to deter rivals. The ease with which you find yourself buying products on Amazon, searching on Google or scrolling on Meta's platforms are all indicative of markets being saturated by a handful of major players. This market ecosystem not only limits consumer choice but oftentimes also discourages potential competitors from entering the market, fearing insurmountable barriers.
Restoring industrial liberty requires regulatory courage. Antitrust enforcement must shift its focus back to creating space for new competitors, especially in emerging industries like AI and renewable energy. By applying the public interest standard rigorously and targeting enforcement against the most egregious anti-competitive behaviors, regulators can foster a climate of innovation and opportunity.
Congress, too, has a role to play. The lawmakers who championed antitrust legislation in the early 20th century recognized that economic concentration posed a threat not just to markets but to democracy itself. Their vision of industrial liberty as a pillar of American life must guide modern legislative efforts. Proposals to curb Big Tech’s market power, such as limiting acquisitions of nascent competitors or imposing stricter interoperability requirements, align with this tradition.
The erosion of industrial liberty is not merely an economic issue; it is a democratic one. A society that tolerates monopolistic dominance is one where individual initiative and creativity are subordinated to corporate power. Reviving the principles of industrial liberty would not only enhance economic dynamism but also reaffirm the democratic values that underpin American antitrust law.
Realization of those ends, however, does not require revolutionary means. We don't need to bankrupt Big Tech but merely reorient it around the values these companies claim as their own. It should not be forgotten that many of these companies have greatly increased our collective capacity to learn, to explore and to connect. They directly employ thousands and have positive economic impacts on many more. And, in many cases, they have used their successes to benefit their surrounding communities. The issue is that we can and should expect Big Tech to do all these things at an even greater scale. The exceptional things should be the norm.
The FTC, Congress and the courts must embrace this challenge. By restoring industrial liberty as the guiding principle of antitrust enforcement, they can dismantle the barriers that Big Tech erects and pave the way for a new generation of entrepreneurs. The stakes are clear: Either we reclaim industrial liberty as a cornerstone of our economy, or we allow Big Tech to stifle the entrepreneurial spirit that defines the American dream.
Frazier is an assistant professor at the Crump College of Law at St. Thomas University and a Tarbell fellow.
