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A Supreme Court fight might be exactly what America needs

This is a situation that cries out for a breakthrough, a change, not 50 more years of John Roberts and his center-right successors punting on the issue.

September 25, 2020 / 08:24 PM IST

In the brief window between the death of Ruth Bader Ginsburg and the announcements from Republicans like Mitt Romney and Cory Gardner that they would consider a replacement before the November election, several writers floated a grand bargain, in which Republican and Democratic senators would agree to de-escalate, trading a GOP promise not to confirm a Ginsburg replacement before the election for a Democratic promise not to pack the court if Joe Biden wins.

The goal of these proposals was a kind of stabilizing stasis, in which the balance of the court would remain where it stood before Ginsburg’s passing — tilted 5-4 toward Republican appointees, with more complicated divisions case by case. And in online and offline conversations, the idea was extended to encompass a larger truce — no Republican replacement for Ginsburg, and no radical moves of any kind from Democrats in a Biden presidency, meaning no abolition of the filibuster and no partisan push to add new Democratic-leaning states.

The people who floated these ideas were mostly, like me, conservatives who opposed Donald Trump’s election. So I know how they think, and in the evening hours after Ginsburg’s death lit up social media I was thinking similarly: A Supreme Court seat isn’t worth the Republic collapsing around our ears.

But I woke up the next morning feeling differently. In certain ways, yes, American politics needs stabilization, reason, calm. It certainly needs a president who actually tries to preside over the nation, instead of flouting every norm of decency, treating half the country as his enemy, and delegitimizing an American election because he fears he might not win.

In other ways, though, it is precisely our stalemates and our stasis, a “stability” created by gridlock and dysfunction, that has maddened our debates, made Trumpism possible and hysteria the norm.

In the rhetorical arena, the world of cable news and social media, there’s gasoline enough for every fire. But in the arena of policy, where judges and legislators and presidents and voters interact, we may need to experience a little more shock therapy, the curative fever that comes when frozen conflicts finally heat up.

Consider abortion, the issue that hangs over the looming confirmation battle as it has hung over confirmation battles for decades. America doesn’t have an abortion settlement: We have a permanent conflict that’s been prevented from resolving itself because it’s been artificially frozen from above.

We did have a decade of normal political debate on the issue in the 1960s and early 1970s, with elections and lawmaking and shifting, unsettled coalitions. But Roe v. Wade put an end to that, locking us into a status quo in which the issue warps judicial politics, public opinion barely changes — stuck at around 20% pro-life, 30% pro-choice, 50% unsure — and the anti-abortion movement cycles through failed attempt after failed attempt to change an anti-democratic ruling by democratic means.

This is a situation that cries out for a breakthrough, a change, not 50 more years of John Roberts and his center-right successors punting on the issue. As an abortion opponent, I want to believe that were the issue opened more to democratic debate, the small group of pro-life states would be able to create a model that restricted abortion and also supported pregnant women, which in turn would shift public opinion in a pro-life direction nationwide.

However, I will readily concede that it might turn out otherwise, that the prospect of abortion bans might consolidate a true pro-choice majority, which would either codify Roe in legislation or else make liberal court-packing popular and usher in a few extra liberal justices with a mandate to affirm abortion rights.

But in that case the pro-life movement would have its real political position clarified and its much longer-term cultural task made clear. And the clarifying power of defeat, no less than the opportunities of victory, would be preferable to the futile trench warfare we have now.

The imagined post-Ginsburg truce, however, would postpone those possibilities into an ever-more-distant future, leaving us stuck with a deranging status quo.

Meanwhile, for Democrats, giving up not just the threat of court-packing but also the possibility of a Senate without the filibuster and a Senate with two new states, Washington, D.C., and Puerto Rico, would have a similar effect: It would exacerbate liberal disillusionment with a legislative system in which even popular and incremental left-of-center ideas seem to have no chance of getting through.

Yes, the Senate is supposed to slow things down and force the parties to build consensus. That’s the case for maintaining the filibuster, and I believed it when I started at this job. But a long, unhappy decade later, it seems pretty clear that the combination of polarization, presidential aggrandizement and legislative abdication are creating obstacles to legislating far beyond what a reasonable system would impose.

And while these obstacles affect both parties, the Democrats currently have the more popular domestic policy ideas — not “Medicare for All,” but Obamacare for Slightly More — and a clear gap between their national support and their Senate representation. So a world where their party’s turns in the majority are rendered sterile in advance is a world calculated to make liberals as disillusioned with the Senate as social conservatives have been with the Supreme Court.

A world where Democrats can actually pass whatever bills Joe Manchin and Kyrsten Sinema support, on the other hand, is also a world where the Republicans are forced to actually do policy to counter them, instead of obstructing while gesturing vaguely at think-tank white papers — the party’s health care strategy for a decade, and one that has gained basically nothing for conservative health policy ideas.

Likewise, a world in which the Democrats midwife new states into existence is not a world where Republicans suddenly can’t compete for the Senate anymore. It’s a world where Republicans would be forced to push somewhat more against our current rural-urban polarization, which could help make the GOP a more diverse coalition, equipped to govern rather than just resist the liberal tide.

Also, it’s worth noting that new states don’t always play the role that partisans expect. (For instance, Republicans ushered in a bunch of Western states in the 19th century, only to see several of them vote for William Jennings Bryan soon after.) The District of Columbia might be a permanently Democratic state, but Puerto Rico’s destiny would be less certain.

And forcing more uncertainty on American politics would itself be a useful thing. It’s the grinding predictability of current partisan alignments, the microtargeted base-turnout strategies and the durability of coalitions even in the midst of a once-in-a century pandemic that simultaneously makes the stakes of every election feel existential and yet ensures that little in the way of dramatic policy change actually occurs.

The best thing about Donald Trump’s 2016 victory was the way it briefly seemed to smash these certainties, to prove that political consultants didn’t know half of what they thought, to demonstrate that swing voters could still be discovered and carefully calculated Electoral College maps unmade. If Trump had built on this in his presidency, if he had done outreach and defied Republican orthodoxies and tried to be a majority-building president, then he would have proved many of his skeptics wrong.

Instead, Trump has given us norm-breaking to no purpose save self-protection and self-enrichment, rhetorical excess that puts a ceiling on his support and a series of empty cultural battles that just lock people into their preexisting teams.

Just because the president’s norm-breaking has been so often pointless or destructive, though, doesn’t mean that all political escalation is destined to polarize the country further. It just tells us that to the extent that America needs a reconfigured political system, a realigned politics, a transformed relationship between the branches of government, Trump has been the wrong re-founder for the task.

But the task itself is still essential. The norms that worked for American politics in the middle of the 20th century very clearly don’t work anymore, as our three-branch system has gradually decayed into a weird executive-judicial hybrid, with a weakened Congress hanging around to pass budgets and approve judicial nominees.

In an ideal world, maybe, we would arrest this decay through a revived bipartisanship. But a bipartisanship of stasis doesn’t offer anything except delay. The fights over an overly powerful court and a gridlocked Senate will go on till they reach some kind of transformative conclusion; it’s reasonable to want to get there sooner, and see what kind of republic awaits us on the other side.

To which a rejoinder might be that we should want to push forward, to escalate disputes, to renew our institutions through democratic conflict — but maybe we shouldn’t want to do it now, in the annus horribilis of 2020, with the coronavirus still rampant, our president shouting about voter fraud and his opposition fearing the literal end of the Republic if he’s reelected. The point of embracing compromise and temporary stasis, in this view, wouldn’t be to postpone needed conflict for decades; it would just be to get us through this polarized moment, this awful year.

And this is the place where I’ve realized something odd about myself in recent days. My brand, I suppose, is conservative pessimism, but in sticking with the view that the United States is decadent and stagnant, our politics too unchanging rather than too tumultuous, I’ve ended up slightly more optimistic about the resilience of our country than almost anyone I know — from liberals who expect Trumpian dictatorship to conservatives worried about woke tyranny to more middle-of-the-road observers worried about secession, constitutional crisis, civil strife.

It’s not that I don’t see the things they’re worried about — I think Trump is dangerous, I would prefer not to live under the rule of a progressive speech police, I can recognize that American divisions run dangerously deep. But I also see some of these problems as reflecting not an excess of political combat but rather its increasing absence, and the strange ways that an age of stalemate encourages apocalyptic fears.

Especially an age of stalemate that’s also an age of growing isolation. As we’ve retreated into virtual spaces and solitary pursuits, subjected ourselves to the terrifying bombardment of social media headlines and segregated ourselves from people who vote the other way, the idea of letting the other party actually legislate, actually govern for a while, seems more terrifying than it would have generations back. And the big policy swings that used to characterize our politics — this is a country that once banned alcohol by constitutional amendment and then repented, all within 13 years! — seem not just alien but frightening, unimaginable, Republic-ending.

Hence the case for congressional escalation as shock therapy. The hope would be that once we’ve actually fought over abortion or reformed the Supreme Court or let 51 senators pass legislation, we’ll discover that a silent majority of the country can handle conflict better than people handle it on Twitter — and that in fighting battles that actually lead somewhere, some of the feeling of 2020’s apocalypse recedes.

c.2020 The New York Times Company

New York Times
first published: Sep 25, 2020 08:24 pm