Our October 9 discussion was about whether people can change their behaviors to heal the world rather than engaging in the destructive patterns in which we have participated since humans walked the earth. We focused on the popular book Behave: The Biology of Humans at our Best and Worst, by Robert Sapolsky, an evolutionary biologist at Stanford. For my quotes and notes on the book or for a link to a recording of our discussion, email me.
 
When we think about science we usually consider the ability of humans to make sense of our world and universe, and to apply that knowledge for the common good. We expect science to provide an explanation of the forces of nature that we can harness to make our world work better. Implicit in much of science is the idea of causality — events lead to other events in a predictable manner — and an expectation that we can use that understanding in our quest for meaning and a better world. Sapolsky provides insight into the human experience based on years of observation and experiment to guide us in moving beyond the world we have created to the one in which we want to live.

In his comprehensive but rather rambling 700-page book, Sapolsky explores the biological and historical patterns of both our constructive and destructive behaviors. He discusses our inner motivations as well as our actions. He also considers the choices we can make to move the world toward a place that works better for us all. That might contradict the thesis of his new book: Determined: A Science of Life Without Free Will, but more on that later.

Sapolsky starts Behave by stating that aggression is a natural part of our makeup: “We always are shadowed by the threat of other human beings harming us (Page 2).” He cites observations of primates and other animals — as well as human studies — to make that point. He demonstrates that throughout the animal kingdom up to — and including — ourselves it ultimately is cooperation that allows us to live together and civilizations to advance: “The realm of humans harming one another is neither universal nor inevitable (Page 4).” He notes that we are the only species that harm others because of ideology (Page 11), and that our words form the basis of beliefs that we impose on the world (Page 16).

An important question he asks is: “Does pure altruism actually exist (Page 18)?” Are we motivated by a desire to make the world a better place, or are all our actions based on narrow self-interest? (See Richard Dawkins: The Selfish Gene.)

In the next chapters he focuses on how brain structure and hormones interact, and the cortex, which commands us to move our muscles and where language is comprehended, and the amygdala, which controls aggression. He tells us that our default natural state is trust (Page 39), but we learn distrust from experience. Using our brain for self-control takes energy of which we have a limited amount (Page 49), and involvement in social structures actually expands the frontal cortex (Page 51). Dopamine is evoked by the anticipation of pleasure and reward and increases as we cooperate with others (Page 66). He cites the power of words to evoke strong emotions (Page 89) and the aggressive behaviors that can result from them.

Regardless of what they are taught, children who witness violence are more likely to act aggressively because it becomes embedded in their nervous systems (Page 198). But personality development differs by culture: collectivist (usually Eastern) cultures emphasize interdependence and individualist (usually Western) cultures emphasize independence and competition.

Only humans are capable of passing on cultural values and skills that develop for countless generations. With a few exceptions, we have moved from the hunter/gatherer stage to agriculture, from exposure to the whims of nature to building shelters (Page 270). Hunters/gatherers in small groups usually have been more egalitarian, but as we developed complex states, we created hierarchies with great gaps between those on top and bottom (Page 291).

Regardless of what we may consider our advanced civilization, we have retained our innate tribal tendencies, which divide others into those we think are like us and those who are not — Us and Them (Page 416). We tend to act on those tendencies regardless of how much we might profess to believe in constructive communication. But our emphasis on competition rather than cooperation can lead to chronic stress that causes heart disease, diabetes, and other chronic maladies (Page 423).

Most of our conversations are devoted to emphasizing the negative — what is missing — rather than clarifying the direction we want our lives and societies to move (Page 503). But seeing the negative also may have evolutionary advantages in that it allows us to identify threats. Irrational optimism in warfare may be dangerous to your health (Page 643). (see Daniel Kahneman: Thinking, Fast and Slow.)
 
Most of the rest of the book is devoted to how cooperation and conciliation are as much a part of our nature as aggression. Militaries know that most people have a natural aversion to killing and try to train that out of them (Page 647). Sapolsky points to the helplessness many people feel to create positive change, but reminds us that there have been those who have made a difference through persisting in their visions of peace and the value of all human beings, such as Gandhi, Mandela, MLK, Lincoln, and many others (Page 652). He points to the mass movements that began progress toward democracy, but many have faltered in such places as Egypt, Tunisia, and Venezuela (Page 653). One-time enemies have chosen reconciliation numerous times, such as between the US and our combatants of the World Wars, and our venture in Vietnam (Page 655). We now recognize the folly of much of the genocide of the past, such as the treatment of African slaves and Indigenous Americans, but do we recognize it when it happens in our own day?
 
Sapolsky acknowledges the importance of our upbringing on our actions, but insists we can find alternatives to chronic aggression. The assumptions we carry about others and the world in our minds can keep us from constructive dialogue. He states that there is an underlying experience we seek from our interactions and worldly quests: “Often we’re more about the anticipation and pursuit of pleasure than the experience” (Page 672), and claims we do not need to be bound by our backgrounds, but can focus our attention on our vision of how the world should work: “You don’t have to choose between being scientific and being compassionate” (Page 675).
 
Sapolsky clearly is very caring about the direction of our world. No one watching his popular videos could doubt that. But in my view, it is his grounding in the classic causal scientific model that limits the vision he conveys. If our actions — and the universe — primarily are the result of a series of events (unfortunate or not) that lead one to another, then what happens is indeed predetermined. But it seems he hasn’t really considered the full implication of the determination he espouses.
 
If everything we do is predetermined, then our coming to that conclusion also is predetermined, so belief in predetermination is meaningless. And that view doesn’t really follow what much of science and philosophy tell us. A hundred years ago the quantum physicists told us that what happens is not predetermined, but only can be predicted with a limited degree of certainty.
 
Our expectations about what will happen often are wrong because they are based on incomplete observation. There are limits to our understanding. We often can’t really know what those around us will do or say; weather reports frequently are mistaken; the prediction of a vast majority of economists that we would be in a recession by now was wrong (as they admit). Even if everything that happens is predetermined, we don’t have enough information to know how things actually will turn out. The universe is immense, and we only can frame it through our limited thought processes. Einstein, Hawking, Heisenberg (uncertainty principle) and many others have expressed awe about the mystery of nature and how little we really know.

So healing the world of the problems we have created, in my view, begins by admitting how little we know, rather than affirming how much we know. When aware of how little I know about others I am forced to let go of my preconceptions. To follow Socrates, all we really know is that we know nothing. (See Plato’s Apology, 22d) When we interact from that place, we are closer to reality than we are from our assumptions about others and the world. Of course, we must still rely on our concepts, but realizing their limits is the beginning of real understanding.
 
The knowledge we have accumulated has built our civilizations, saved lives, and allowed us to live much longer and conveniently than previous generations, at least in the Western world. But it also has allowed us to erect the false god of thinking as our only source of understanding. Our current knowledge eclipses what we knew 100 years ago, but 100 years from now people will look back and be amazed at our ignorance. Plus, our emotional side gets lost when we dwell only on the rational.
 
Acknowledging the limits of our perceptions puts us in a place of profound humility. We are less likely to think that we and members of what we consider our group are better or worse than others. We are less likely to encounter others as threats. We are more likely to make realistic assessments of others and the world as we realize the limits of our concepts and engage who and what is around us in a way that is more genuine and personally fulfilling. This leads to having greater respect for every human being, and as we do this, we experience the respect we seek. Acknowledging our limits and common humanity allows us to return — if only cautiously — to the sense of trust that Sapolsky considers our original state.

By Robert Katz

Social media has been a place of connection for friends, families, and persons with shared interests. It also has been a cesspool of hate speech, harassment, and disinformation. The social media companies, for the most part, have policies against the worst sorts of online behavior, though the policies have been sometimes inadequate and poorly enforced. But a recent ruling by the Fifth Circuit US Court of Appeal, a judicial body to the right of the current Supreme Court, undermines the ability of the companies to do even the modest content moderation they have undertaken. The US Supreme Court just announced it will take up the case this term.

Recently a Georgia teacher was fired by her board of education for reading a book to her fifth-grade class that the board considered controversial. The book was a popular children’s title: My Shadow Is Purple. A grandmother of one of the students approved of the firing, stating that it is up to parents, not teachers, to teach “cultural fads” to their children: “I want the parents to be parents and the teachers to teach.” (“Georgia teacher fired after reading book on gender to fifth-grade class,” Adela Suliman, The Washington Post, August 19, 2023.) Book banning in schools and libraries is increasing, with over 1,600 known incidents last year alone. (“Attempts to Ban Books are Accelerating and Becoming More Divisive,” Alexandra Alter and Elizabeth Harris, The New York Times, September 16, 2022.)
 
The nature of what is taught also is being challenged. In Florida, current policy requires that children be taught about the “benefits” of slavery. (“Protesters Decry Erasure, Rewriting of Black History, from Florida Schools,” Democracy Now, August 17, 2023.) In Arkansas, advanced placement African American studies now are banned in high schools. (“Arkansas Orders Credits be Withheld for AP African American Studies in High School,” Democracy Now, August 16, 2023.)
 
These and similar curriculum changes are increasing in many states. They add a new urgency to the perennial argument about what is teaching and what is indoctrination. Taking a step back and considering the purpose of education in a democracy might provide us a clearer perspective about the direction we want education to take.
 
None of us would disagree that it is essential for children to learn basic skills to navigate life. Nor would we argue against vocational training required to move students toward their chosen career. But beyond that, what are the skills they need to maximize their ability to succeed?
 
Our world is one of diverse individuals. No two of us are the same. In our schools, workplaces, and everyday lives, we encounter a wide variety of people with whom we need to work toward common solutions to the problems that confront us. We want recognition and acceptance for who we are, but many people from all backgrounds believe they never receive the recognition that is their due.

In the 1960s, segregation was a dominant practice in the South. Homosexuality was considered a mental disease in the US, a view even promoted by mainstream psychology. TV programs — including commercials — were dominated almost entirely by the presence of straight white Americans. This was the model unthinkingly promoted by our media and educational system.
 
There has been a growing awareness of the horrors perpetrated upon those who didn’t fit the predominant idea of what an American should look and act like, and a greater understanding of what it means to be human slowly has awakened in this country. Many people have begun to realize that the value of human beings does not depend on their race, religion, sexual orientation, or other personal factors, but that encountering people as the unique individuals they are benefits those on both sides of the encounter. Unfortunately, many people still judge others based on their personal characteristics rather than their value as an individual.
 
Yet an ability to work and live with others remains an essential element of success in all areas of life, unless we measure success by an ability to impede others based on what we don’t like about them. But those who do this are distracted from focusing on their own progress and success.
 
Real education enables us to expand our horizons — to understand others and the world better and engage with them as they are, not as we imagine them to be. Progress in every area of knowledge — from science to geography to math to psychology — depends on encountering and learning to understand the world as we find it.
 
The same principle applies to our willingness to understand individuals who compose much of the world with which we engage every day. It is not up to me to determine how or who you should be. If our approach is one of openness to who and what we encounter, our model of the world will expand as will our knowledge and wisdom.
 
For those who believe that education is preparation for life, learning is an ongoing process of continually expanding our horizons. We strive to understand the mistakes of the past so we don’t continue making them in our own lives and times. Real education embraces the diversity and beauty of the world and people that surround us. This is the most essential element in our ability to function more effectively in every area of our lives. ​(For further reference, see In Defense of a Liberal Education by Fareed Zakaria, 2015, Norton Press, or my 2018 talk at the Commonwealth Club: “Do We Learn from History?”)

We’re all aware of slippery slope arguments: If A, which is not so bad, is allowed then B, which is terrible, will surely follow. While such arguments are sometimes valid, they should be used sparingly. Thrown around indiscriminately, these arguments can lead to paranoia and polarization, warning of dire consequences from the adoption of reasonable measures. If we have universal background checks, next thing they’ll be confiscating our guns.

Many people and groups reacted to the recent US Supreme Court decision in 303 Creative v. Elenis with a slippery slope framing. That was the case of the web designer refusing to do websites for gay weddings, with the court's conservative majority siding with the web designer. The ACLU had this to say after the decision came down: “The Supreme Court held today for the first time that a business offering customized expressive services has the right to violate state laws prohibiting such businesses from discrimination in sales. The Court’s decision opens the door to any business that claims to provide customized services to discriminate against historically marginalized groups.”

Does this case really “open the door” for the kind of wholesale discrimination that the ACLU statement conjures? Let’s take a closer look at the decision.

Briefly, the case arose when a Colorado web designer, Lorie Smith, decided she wanted to get into the wedding web design business, but did not want, because of her religious beliefs, to design websites for same-sex weddings. At the time the case was filed, she had not yet designed wedding websites, but courts allow preemptive lawsuits challenging a law when there is a real threat of prosecution for exercising First Amendment (speech) rights. Here, the state of Colorado, under its anti-discrimination laws, had taken legal action against a baker who refused to make custom wedding cakes for gay couples, and admitted it would go after Smith for her no-gay-weddings policy.

Because Colorado had yet to act against Smith, her lawsuit was tried on the basis of stipulated facts — i.e., facts that both parties to the lawsuit agreed were true. One of those facts was that Smith’s web designs would be “expressive in nature,” designed “to communicate a particular message.” Another fact was that Smith would not otherwise discriminate against gay customers: if a person who happened to be gay was opening a restaurant and wanted her to design the website, no problem.

And in fact, Smith and Colorado agreed about most of the operative legal principles. Colorado conceded that when Smith created a website, she could not be forced to say anything that was against her beliefs. More generally, both parties agreed that Colorado’s anti-discrimination law did not dictate what goods or services a business sold, but only who it sold to. An analogy raised in the briefs is of a store that sells greeting cards. Under Colorado’s anti-discrimination law, the store could not refuse to sell cards to gay people or Jews. But neither could it be forced to sell cards that celebrate gay weddings or bar mitzvahs.
​
So, under Colorado’s reading of the law, Smith was entitled to create only wedding websites that affirmed a traditional view of marriage. But she could not refuse to create such a website for a gay couple. In other words, if Smith offered to create a website celebrating the marriage of John and Craig, with a banner across every web page that said, “Marriage is the sacred union of a man and woman,” she wouldn’t be violating Colorado law. What gay couple in their right mind would want to avail themselves of such a website? Even under Colorado’s reading of its law, Smith would be able to effectively withdraw from the gay wedding website market.

Of course, you can worry that maybe the next case will expand the definition of “expressive activity” protected by the First Amendment. But the Supreme Court majority, in all fairness, did limit its decision to the situation in which a person is creating a work of expression in words, pictures and video, which is clearly protected by the First Amendment. There may be close cases where the dividing line between speech and conduct is not entirely clear. But if a plumber refused to serve a gay person claiming his plumbing is an act of creative expression, the likely judicial response would be solvuntur risu tabulae, which is Latin for “you gotta be kidding me” (actual translation: “the case is dismissed amidst laughter”). Others may try to claim that a refusal to serve gay people is protected expression as part of their freedom of association. But this kind of argument has been soundly rejected by the Supreme Court, which so far has upheld public accommodations laws such as the 1964 Civil Rights Act against free-association claims. It seems unlikely that even the current conservative court would want to disturb that particular hornets’ nest.

The law is often engaged in balancing competing values, both of which are important — such as in this case, free speech and anti-discrimination. The rule of law thrives on distinctions, sometimes very fine ones. This most recent case makes a modest concession to free speech over anti-discrimination policy, a concession that, given what the parties were arguing, doesn’t seem to be all that consequential. We have to remain vigilant that the next case doesn’t expand the scope of that concession in a way that more seriously undermines discrimination laws protecting gay people. But let’s not exaggerate the importance of a decision that doesn’t make a lot of practical difference by hoisting the slippery slope flag.

As bands turned into tribes and then nations, a central authority figure emerged who was far removed from the immediate lives of most members of society. That was an individual or group that created and enforced the rules by which people — other than themselves — were required to live.
 
Those who came into power usually sought to retain it for themselves and their families. An exception was the early experiment in democracy in ancient Greece, which ultimately failed.
 
People submit to authority because they are protected by living in large societies rather than trying to survive on their own. To use Hobbes’ famous phrase, in a state of nature life is “nasty, brutal and short.” (Thomas Hobbes, Leviathan, Chapter XIII, Part 9: “Of the Natural Condition of Mankind as Concerning Their Felicity and Misery.”​) His view, in a time before modern democracy, was that any state is preferable to none.
 
Perhaps it is fair to say that most of us seek the comfort of living in a society, but when we believe ourselves oppressed, we seek freedom. Thus we are both social animals and people with an essential belief in our value as individuals.
 
The way this plays out in our everyday lives is that we don’t want to be isolated from society but also seek to express our individuality. Every political movement — ancient, modern and those in between — can be seen in this light.
​
​Many countries that seemed to have been moving toward democracy over the last century have become mired in autocracy, while many individuals under autocratic rule have expressed their desire for freedom. In the US, which was founded on overthrowing what was considered an authoritarian regime, there still are many who are convinced that the current government is oppressive and does not recognize their essential needs.

We might ask if it is possible to create a government that satisfies both of our desires for stability and freedom. That was the intent of the US founders as they wrote the Constitution in response to a failed attempt at government under the Articles of Confederation in the years after the Revolutionary War.
 
If human nature mandates we dwell on what is missing in our lives and country, rather than the direction we want to go, there may be no type of government that can satisfy our desire for stability and freedom at the same time. If, however, we stress educating our population about how responsibility on the part of citizens is required to sustain the benefits of democracy for everyone, it may be possible to work toward a truly participatory type of government.
 
The essential principles of such a system cannot be written into law; they need to be understood by the majority of individuals who support real democracy based on compromise as well as insisting on one’s rights. Realizing that my freedom is limited by where it impinges on that of others is the most essential step to protecting me and others at the same time.
 
Freedom and rights as we usually understand them fail to provide the accountability that makes democracy work. We operate as much by habit as principle. Our custom of considering only our individual needs fails to  recognize the poorly functioning democracy to which it contributes. Dialogue with others toward workable solutions at all levels — in government, organizations, schools, families and our personal lives — is our only hope for maintaining democracy.
 
The course of democracy in the United States will largely be determined by our upcoming elections. The most essential principle of democratic rule of law is holding each of us responsible for contributing to the type of country that respects the rights and dignity of everyone. If a candidate or party that promotes this principle prevails, American democracy will likely be preserved; if those prevail who do not believe that this principle applies to them as well as everyone else, our democracy likely will become another failed experiment.

​The explanation for this bit of judicial nonsense is to be found in the Supreme Court’s decision last term, New York Rifle and Pistol Association v. Bruen. Back in 2008, on a 5–4 vote, the Court decided that the Second Amendment right was an individual right to self-defense, not merely the right of states to maintain militias. That case, District of Columbia v. Heller, acknowledged that some gun-control measures would nonetheless be constitutional, but left unanswered the question of how their constitutionality would be determined. The federal courts of appeal after Heller devised their own two-step constitutional test that went something like this: First, the court would decide whether the gun-control measure infringed on the Second Amendment at all, using history to determine whether such gun-control measures were in practice at the time that the Second Amendment was adopted. Second, if history did not answer the constitutional question, then courts would employ a balancing test: Given the nature and extent of the intrusion on gun rights, was the government’s interest in protecting public safety sufficient to justify the law’s intrusion? Under this two-step test, the Fifth Circuit had previously upheld the constitutionality of a law prohibiting domestic violence perpetrators from owning guns.
 
In Bruen, the court threw out Step Two. The only question that needs answering, according to the majority opinion, is whether the gun-control measure at issue has a sufficiently close historical analog to the laws in force at the time the Second Amendment was enacted. How close? The court didn’t make that clear. But the new method of constitutional reasoning that the court prescribed, based solely on history and historical analog, led directly to the preposterous decision that domestic violence abusers had the constitutional right to own guns.
 
Justice Thomas, writing for the court in Bruen, argued that we needed no such Step Two balancing test because the Second Amendment already incorporates a balance “struck by the traditions of the American people.” But what does that mean? If you’re balancing the dangers posed by guns with the right to self-defense, then that balancing will look drastically different in 2023 than in 1789. The latter was a society in which most people lived in small towns or farms, there were no cities with a population greater than 35,000, there were no professional police forces, firearms required reloading with every shot, and the biggest dangers were from belligerent Indians and recalcitrant slaves.
 
To state the obvious, we live in a different world, one of epidemic gun violence in a highly urbanized society, where weapons load automatically, where every week brings news of mass shootings, and where gun violence — homicides and suicides — is the leading cause of death in children.

​But even in bucolic early America, society was planted thick with laws controlling the use of guns. As UCLA Law Professor Adam Winkler recounts in his book Gun Fight, there were laws requiring guns to be given up to the authorities in times of war. Concerns with gunpowder igniting fires caused some jurisdiction to prohibit the storing of guns inside homes or other buildings. There were laws forbidding sale of guns to Indians or free Blacks. There were laws routinely requiring a town’s adult male populace to report with their guns to be inspected to see if they were in good working order. In the late nineteenth century, shortly after the passage of the Fourteenth Amendment, in the so-called wild West, frontier towns like Dodge City or Tombstone forbade gun possession within the town limits. The guns had to be left with the sheriff or in the outskirts of town with their horses. These measures resulted in surprisingly low murder rates, and researchers have concluded that “many more people have died in Hollywood westerns than on the real frontier.” (Winkler, p. 164)
 
The lesson we can draw from this history is not a precise model of the kind of gun legislation we need today, but rather the general principle that gun rights were always embedded in the social and legal order that limited dangers posed by gun ownership. Indeed, the very wording of the Second Amendment, with its prefatory clause “a well-regulated militia, being necessary to the security of a free state,” preceding the declaration of the “right of the people to keep and bear arms” strongly suggests that the framers of the Second Amendment envisioned a version of gun rights that was consistent with, indeed subordinate to, public safety. But if we follow a strictly historical model much commonsense and widely supported legislation — background checks, keeping guns out of the hands of the mentally ill, licensing gun dealers, prohibiting ex-felons from buying firearms — all may be in constitutional jeopardy because none of these laws existed at the time of the Second Amendment’s adoption.
 
Democratically elected representatives have no greater responsibility than to keep their constituents safe. Perhaps the US Supreme Court will eventually overturn the Fifth Circuit’s decision protecting the gun rights of domestic violence abusers. It may clarify Bruen so as to make the decision more intelligible and more workable. But to have a court with clear ideological bias consult 18th and 19th century statute books to decide whether 21st century gun-control laws will be allowed to stand is an appalling prospect and a usurpation of democratic self-government. Being clear that this is an unacceptable state of affairs is the first step to changing it.

By Robert Katz

The treatment of transgender people is one of the most active fronts in our never-ending culture wars. Any nuance gets lost on both sides of the debate. At the risk of being caught in the crossfire, this post attempts to formulate a sensible framework for understanding this issue.
 
My starting point is the affirmation of two principles. First, people should be able to express their gender identity as they wish, not in conformity with other people’s ideas. That principle is rooted in the fundamental right to express oneself linked to the First Amendment protection of freedom of speech.
 
Second, gender dysphoria, the strong sense of belonging to a gender other than the biological gender into which one was born, is real. The causes of gender dysphoria are not well understood, but seems to have a physiological basis, at least in some cases. From this emerges the principle that people experiencing gender dysphoria should be given “reasonable accommodation,” a term that comes from the law of disability discrimination. Discrimination on the basis of disability cannot be addressed by treating disabled people the same as the so-called able-bodied. Schools, workplaces, and other public spaces must reasonably adapt to their needs in order to give them an opportunity to participate in society and reach their full potential. So it is with transgender people: we are obliged to reasonably accommodate them so they can live in alignment with their gender identity and still be fully functioning members of society, countering a tendency to marginalize them due to their unusual physical circumstances.
 
The recent spate of legislative proposals in Republican states are rooted in denial of these principles. Their animating idea, genuinely believed in or professed out of political opportunism, is that the law should define people’s gender according to their biological sex “without regard to an individual’s psychological, chosen or subjective experience of gender,” as a recent South Carolina Republican resolution reads. According to an article in the New York Times, in addition to bathroom and sports bills, a new wave of over 150 anti-trans bills proposed in at least 25 states include bans on transition care into young adulthood, on drag shows, and on teachers using names or pronouns not matching students’ biological sex. As with other issues, like climate change, structural racism, and who won the 2020 presidential election, some Republican politicians hope to parlay evidence-free bias into a winning political strategy.
 
Nonetheless, the affirmation of the two principles above don’t resolve all transgender issues. Inasmuch as the transgender agenda asks not merely for freedom of expression, but for societal accommodation and medical intervention, it raises a number of issues that can’t be dismissed as simply transphobic. For one, how do we know when medical intervention is appropriate, and what kind of intervention? Our answer to these questions may depend on how we interpret transgender demographic trends. According to one study of the U.S. population, 1.4 percent of 13- to 17-year-olds and 1.3 percent of 18- to 24-year-olds identify as transgender, compared with about 0.5 percent of adults. To what extent is this difference accounted for by the fact that trans-inclined adults have been inhibited by social pressure from living as their authentic selves, and to what extent is the difference an artifact of social influences to which people under 24 are exposed? If the later, then perhaps stricter protocols for medical intervention, particularly for minors, is called for.
 
Then there are questions around which accommodations are “reasonable.” For example, while the issue of transgender competition in women’s sports has been amplified by right-wing hysteria, there are plausible arguments for placing some constraints on that competition. The ardently feminist Women’s Sports Policy Working Group, for example, although in favor of some transgender women’s participation in recreational sports, have raised concerns about the advantages that transgender women’s athletes who have gone through puberty as males may retain, and have proposed some limitations on their participation in girls’ and women’s sports at the competitive level. You may disagree with their position, but it isn’t reasonable to simply dismiss it as the product of bigotry.
 
Questions about reasonable accommodation extend into areas of language. Using a person’s preferred gender pronoun seems to me unproblematic. But do we need to socially ostracize anyone who doesn’t use “pregnant people” and “people who menstruate” to refer to biological women? Do we all need to fall in line with the decision in some quarters of academia and the media to use “Latinx,” a term favored by only 4 percent of the people in the country who identify as Hispanic?
 
The Republican wager that anti-trans legislation will have political benefits may pay off, at least in the short term. According to a 2022 Pew Research Poll, although 64% of respondents were opposed to discriminating against trans people in employment and housing compared to 10% in favor, they believed, 58% to 17%, that trans athletes should compete on teams that match their sex at birth, 46% to 31% that health care professionals should be prohibited from assisting people under 18 to transition, 41% to 31% that trans people should use the bathroom of the sex assigned at birth, and were evenly split on whether parents who help their children transition should be investigated for child abuse. And this gets to a reality not often acknowledged in liberal circles — that to many people, transgender is a strange phenomenon because it is far outside their personal experience. Prejudice stands ready to supply the answers where experience can’t.
 
There is a tendency among some militant advocates to dismiss any questions and concerns about the accommodation of transgender people as simply transphobic. Transgender advocates may succeed in making certain spaces like universities safe for trans folk, and may intimidate some who express heretical opinions. But as the above survey indicates, they may not be able to translate their dominance in some corners of society into actual political power. And not only is the transgender project placed in jeopardy, but Republicans are using its unpopularity to thwart a progressive agenda that would address climate change, racial justice, and economic inequality. Persuasion on transgender issues will not be possible until advocates realize that at least some questions about the accommodation of transgender people are legitimate and should be addressed, even if they passionately believe that they have the right answers to those questions.

As we mark the 50th anniversary of Roe v. Wade, I note that the supporters of Dobbs v. Jackson Women’s Health Organization, the decision revoking the constitutional right to an abortion, have sought to draw celebratory parallels between that decision and Brown v. Board of Education. This was the case that recognized the principle that “separate but equal” treatment of Blacks and Whites in segregated schools was incompatible with the Equal Protection Clause of the Fourteenth Amendment. Like Brown, Dobbs overturned a foundational precedent that had been in force for decades, and according to anti-abortion proponents, established an important right — the right to fetal life — denied by the discredited precedent. The Dobbs opinion itself referenced Brown a number of times, and Mitch McConnell said of the Dobbs decision: “The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson.”

But the differences between Brown and Dobbs far overshadow their similarities. There is the much-discussed issue of how these decisions used history. The Brown court refused to be bound by the views of those who ratified the Fourteenth Amendment in 1868. The vast majority of those legislators almost certainly would have approved of racially segregated schools. In contrast, the Dobbs court found the fact that abortion was widely criminalized in 1868 to be decisive. Had Brown followed the Dobbs court’s method of constitutional reasoning, it would have upheld Jim Crow schools.

However, I would like to focus on another critical difference — the conditions under which the precedent was overturned. In Brown, the court was undoubtedly influenced by the changing attitudes toward race in the US. Having just fought a war against an enemy whose core ideology was extreme racism, and in which Black Americans served valiantly, the post-war period saw a reevaluation of racial attitudes. According to polls undertaken by the National Opinion Research Center, in 1942, only 42 percent of people believed that Blacks were the intellectual equal of Whites. By 1956 that number had risen to 78 percent. In 1942, 30 per cent believed that schools should be integrated; the percentage rose to just under 50 in 1956, and to over 60 per cent by the 1960s. The Brown court was not only influenced by changing attitudes toward race, but as these statistics suggest, helped to further catalyze that change by putting its imprimatur on the doctrine of racial equality. Reality has a way of intruding, however belatedly, on myth, and the myth of Black inferiority gradually gave way to the reality of Black equality.
 
By contrast, views on abortion remained fairly constant in the 30 years prior to the Dobbs decision. According to the Pew Research Center, 61% of those polled in 2022 believed that abortion should be legal in all or most cases, about the same percentage as those polled in 1995, with some fluctuation. Unlike racial attitudes, there was no corresponding shift in attitude away from abortion rights. The differences between a 15-week-old fetus and a newborn infant are significant, physiologically and neurologically. One can argue about the moral significance of those differences, but nothing we have learned about the science of fetal development since the abortion right was recognized in Roe has been cause to reevaluate one’s position on abortion.​

What made Dobbs possible was not shifting societal attitudes on abortion but a decades-long campaign on the part of right-wing politicians and their attorney counterparts to appoint antiabortion judges to the United States Supreme Court. As has been much discussed, the Federalist Society, since its inception in 1982, has played a preeminent role in choosing federal judges. After their initial disappointments in the appointments of moderate Sandra Day O’Connor, sometimes moderate Anthony Kennedy and the downright liberal David Souter, the Society developed a sure-fire vetting process, generally recruiting from among their own ranks. Since the appointment of Clarence Thomas by George H.W. Bush in 1991, no Republican president has appointed anyone not affiliated with and/or blessed by the Federalist Society.
 
When it came to the Trump presidency, the predominance of the Federalist Society in choosing judges was on full view. In exchange for social and religious conservatives overlooking Trump’s many personal failings, he outsourced the vetting and selection of judicial candidates to the Society. Aided by Mitch McConnell’s infamous constitutional hardball, Trump got an appointment that should have been President Obama’s, then a second appointment with Justice Kennedy’s strategic resignation, and a third with Ruth Bader Ginsburg’s passing on the eve of the 2020 election to cement the Dobbs majority. So, the success in overturning Roe, unlike the success of Brown, is not a story of society’s evolution on the abortion issue, but of consummate political engineering to change the high court’s personnel.
 
It is said that the process of judicial decision making is fundamentally different from politics — that judges must at least appear to be interpreting rather than making law. But it is clear that the overturning of Roe did not really occur in the judicial chambers of the Supreme Court, but upstream, in the precincts of the Federalist Society and the decisions of Republican presidents and senators. And unlike Brown, a decision that is now almost universally accepted and praised, it is most unlikely that Dobbs, a decision that never even acknowledged the enormous burden that abortion bans place on women’s liberty, will ever enjoy such widespread acceptance. Its legacy instead is likely to be the further politicization of the High Court and degradation of its reputation.
 
Given the right-wing playbook of exerting political power to appoint ideological judges, there likely will come a time when the Democrats will be in a position to answer politics with politics in the form of increasing the number of members on the High Court or requiring that Supreme Court justices are rotated out of the court after a term of years. Whatever form it takes, Democrats will follow the path laid out by Republicans that the key to success in the Supreme Court is to choose, by whatever means are expedient, the right Supreme Court justices.