Hello friends,
This week’s newsletter has a 7 to 8 minute read time:
(1) My brief comment on how the Supreme Court fight puts a spotlight on how norm-flouting is a party-wide problem, not simply a Trumpian one, and the need for Democrats to recognize what this means for their future attempts at governance.
(2) A fun and enlightening Q&A with Jay Willis, a senior contributor to The Appeal, about RBG’s legacy, what we should really be worried about, and why Supreme court justices are “politicians who happen to wear black robes to work.”
(3) What I’m reading
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The Supreme Court fight shows how the norm problem is bigger than Trump
The animating theme of the Biden campaign and #Resistance-style liberalism is that Donald Trump represents such a grotesque exception to the American creed that he threatens its existence. While this group of Democrats tends to be fiercely partisan, they often communicate under the premise that Trump is a stain even on the GOP. “This is not normal” is the war cry of a set of overcaffeinated moderate liberals who eagerly embrace buttoned-up “Never Trump” Republicans, neoconservatives repelled by Trump’s disinterest in the expansion of empire, and FBI agents who operate at the vanguard of suppressing Black liberation.
But Republican senators’ rapid maneuvering on the Supreme Court nomination fight in the wake of Ruth Bader Ginsburg’s death should serve as a reminder of how Trump has no monopoly on shredding norms. Senate Majority Leader Mitch McConnell and almost every single one of his Republican colleagues agreed in 2016 that it was fine to deny Obama’s Supreme Court nominee even a hearing, in defiance of precedent, and in 2020 they have decided that the new precedent that they created no longer holds. There is an underlying consistency: if one disregards McConnell’s incoherent claims about respecting popular sovereignty, then it’s clear that the man is simply maximizing the presence of right-wing power on the Supreme Court — an existentially important source of power for the conservative project.
Should we be surprised by this? Washington has been held hostage by asymmetrical polarization for many years now. Heaps of data show that for decades, Republicans’ rightward shift accounts for most of the divergence between the parties, and that they’re more obstructionist in Congress. Consider New Gingrich’s efforts to delegitimize Bill Clinton, McConnell’s open admission in 2010 that his greatest focus was to render Obama a “one-term president,” and the modern GOP’s pioneering use of the filibuster to effectively end governance rather than slow it or build consensus.
Trump has unraveled norms in Washington by many means: his trading of dog whistle racism for train whistle racism; his inconstancy and illiteracy; his authoritarian grip over the federal bureaucracy and flagrant self-enrichment. But the Republican Party has been trending toward ideological, procedural, and informational extremism for decades, in no small part due to a well-funded and uncompromising conservative movement.
Liberals making charges of hypocrisy look impotent and out of touch with dynamics that have been shaping Washington for quite some time. This comment by cultural critic Matt Zoller Seitz about right-wing pundit Matt Walsh’s support of McConnell’s politicking typifies the dynamic that I’m talking about pretty well:
Seitz is actually confusing politics with governance in his tweet — politics is, by definition, always about power and ideology. What he’s really mourning is the breakdown in the good faith and pro-social behavior that makes governance smooth and majoritarian in spirit.
But as Naipaul famously put it: the world is what it is. The sooner that Democrats accept the realities of our contemporary political era, the sooner they’ll get around to taking the creative and ambitious measures needed to deal with the political climate, measures like jettisoning the filibuster, packing the court, statehood for D.C. and Puerto Rico, pursuing aggressive ways to expand the franchise. This isn’t fighting dirty — all these measures have the effect of making our republic more democratic. (If you’re wondering how packing the court can make the US more democratic, that will be touched on in the Q&A and reading recommendations.)
During his speech about the nomination fight on Sunday, Biden pleaded to Republican senators to follow their “conscience” and break from party leadership. But soon after Mitt Romney — who’s supposed to be replacing John McCain as the Republican “maverick” in the Senate willing to buck his colleagues — said that he was backing the party line, ensuring McConnell had enough votes to move forward with the nomination.
There is no dignity in begging. It’s time to wake up.
5 questions about the Supreme Court situation with Jay Willis
I reached out to Jay Willis over email to ask him to share his expertise about what to make of RBG’s passing and the fight for her replacement. Willis is a Harvard-trained lawyer, former correspondent for GQ, and a senior contributor to The Appeal — and he’s always brimming with funny and incisive takes on the courts and politics.
This interview has been edited lightly for clarity and brevity.
ZA: There's an ongoing debate on the left about just how progressive RBG's legacy is. She's often described as a trailblazer, but it seems that the further out to the left you go in The Discourse, the more she's described as an accommodationist of the status quo. University of Baltimore legal scholar Kimberly Wehle says: "For Ginsburg, adherence to procedure, principles of federalism, judicial independence and ensuring that government does not wield arbitrary power over regular people were hallmarks of her jurisprudence. This list is not stereotypically progressive. If anything, it has marks of conservatism." How should we think about what kind of progressive she was?
I mean, I’ll start by saying that Justice Ginsburg was one of the most reliably liberal justices in Supreme Court history. As an advocate, she basically created the framework for sex discrimination law long before President Bill Clinton elevated her from the D.C. Circuit to the Supreme Court in 1993. After her death, retired Justice David Souter called her “one of the members of the Court who achieved greatness before she became a great justice,” which is not a sentence that describes a lot of people! The Court, and especially this Court, is undoubtedly worse without her.
Hopefully this will not shock you, but this does not mean she was perfect or anything. David Kinder at Current Affairs, among others, has detailed some of the more disappointing moments in Ginsburg’s career. And her jarringly sharp words for former NFL player Colin Kaepernick’s protests of police brutality in 2016—“I think it’s really dumb”—reflected, as Slate’s Mark Joseph Stern wrote, a “profound misunderstanding” of the modern movement for racial justice. (She later apologized.) After ten-plus years on the Court, Justice Sonia Sotomayor sits well to Ginsburg’s left, and from a jurisprudential standpoint is at least as deserving of the “Notorious RBG”-type shine that printed a million tote bags.
To me, the more urgent critique of Ginsburg, who died at 87 after multiple battles with cancer, is the practical one associated with this nightmare we’re now living together: She didn’t retire in 2013 or 2014, when a Democratic president and Senate could have picked her successor. Talking about what history’s most influential woman justice “should” have done, especially right after her death, is a great way to make Twitter enemies. But the circumstances of her death, which comes as reactionary Republicans control the relevant justice-selecting institutions, bear out that criticism...pretty well. She bet on her health, and lost, and we’re all paying a steep price.
Does this mean Ginsburg’s entire legacy is FOREVER RUINED? No, of course not. But her fateful decision not to step down is part of that legacy, too. It’s perfectly reasonable to both appreciate Ginsburg’s many achievements, and also to point out that she screwed some very important things up, and that some very bad things will probably happen as a result.
Also, I assume 82-year-old Justice Stephen Breyer is an avid reader of this newsletter, so: Steve, if Democrats take the Senate and Biden wins in November, your retirement papers better be on the Oval Office desk by the time he sits down at it.
What happens to the court if McConnell does fill the spot? Everyone knows this is a big deal, but how big of a deal?
I struggle to decide how to talk about this without sounding hyperbolic: It will be the biggest deal since, at the very least, Richard Nixon gutted the Warren Court—the closest the Court has ever been to “progressive”—in the late 1960s and early 1970s, sending the institution into the rightward spiral from which it’s never emerged. There is nothing to prevent this collection of Federalist Society drones from propping up a dying ideology and dragging this country down for decades to come.
Briefly: Reproductive rights will be, more or less, toast. The rights of workers to organize will continue to erode. The Court will keep treating immigrants with unvarnished contempt. In a presidential race unlikely to be decided on Election Day, a Republican Court that is openly hostile to voting rights could hand the contest to Trump in a redux of the 2000 Bush v. Gore abomination. Big-idea progressive projects—a Green New Deal, Medicare for All—stand absolutely no chance of surviving judicial review, which means the justices could soon be striking down increasingly desperate attempts to save the planet from slow heat death.
More briefly: It is very, very bad! I wish I had a silver lining to offer here, but I do not!
Where do you fall on the question of court-packing, and how would it work?
How it would work: Congress, not the Constitution, prescribes the size of the Court. It’s been at nine since 1869, but before that, lawmakers set the size at five, six, seven, and even ten for a hot second. There’s nothing sacred about nine, or any number, though. All it would take to expand the Court from 9 to 15 or 21 or 121 is a Congress willing to pass a bill that says so, and a president willing to sign it.
A slim Democratic Senate majority won’t have the 60 votes to end a filibuster of a Court-packing bill. But a simple Senate majority can get rid of the filibuster using the so-called nuclear option. The bottom line is that a majority that agrees to stick together can do it.
I support expanding the Court. To the extent you ever believed “norms” or “precedents” about confirmation votes in election years were at all real, there is only one “norm” now: The party that wins gets to use its power to take control of the Court. Even setting aside the terrible precedents that Justice Amy Coney Barrett is going to rubber-stamp soon, political support for Court-packing is a simple matter of recognizing that the landscape has shifted forever. At this point, Democrats’ reluctance to get onboard would amount to playing by rules that the other side already gleefully stuffed into the garbage can.
Skeptics worry that Court-packing would set off an arms race with no end in sight. But The Nation’s Elie Mystal has neatly summarized my feelings on this, which are WHO CARES and/or GOOD.
The bigger the Court gets, the less influential any single justice is, and the less important this unelected body of elderly Ivy League lawyers becomes in fighting our national culture wars! I look forward to the day that an 891-justice Court has to meet in a high school gymnasium, because that Court is not likely to be capable of mustering the votes to sweep away the civil rights of [insert minority group here] with the stroke of a pen.
To me it seems that appointing lifelong philosopher kings who are replaced every time one happens to die off is rabidly antidemocratic. Since we can't really abolish this thing, what are the most realistic reforms that can be pursued to make this whole arrangement less offensive?
Beyond expanding it, term limits are a cool idea. In the past, term limits have been endorsed by both liberal and conservative types—not coincidentally, whichever camp tends to be out of power is generally the loudest advocate, but still. Fix the Court has a pretty comprehensive reform agenda that includes, among other things, increasing media access to Court proceedings and expanding the availability of justices’ financial disclosure obligations. Those are also good and smart.
Really, I’m for anything that reduces the Court’s power and influence, and especially that chips away at the deeply wrong perception of the Court as a nonpartisan, above-the-fray, calling-balls-and-strikes institution. The justices are politicians who happen to wear black robes to work, and should be treated as such.
Anything you wish more people were talking about?
I did some mad tweets about this recently, but: The media often refers to Court reform as “radical.” I get where this framing comes from, and have used it before myself. But it’s wrong. Expanding the Court is not “radical.” The Court—its structure, its composition, its power—is already radical. Expanding it is a reasonable, proportionate fix for a system that obviously failed a long time ago.
As bad as this right-wing takeover of the Court is, it isn’t the problem so much as it is a symptom of the Court’s fundamental brokenness. It’s “radical” to entrust so much power to nine old Ivy League lawyers, and for their death or retirement to plunge us into months of frenzied chaos. Even if Republicans weren’t salivating at the prospect of Justice Barrett eviscerating what little remains of reproductive rights in America, expanding the Court would still be a good idea! Please don’t confuse a status quo’s longevity for its desirability.
Expanding the Court will for sure be “significant.” But it’s not “radical,” and calling it that subtly carries water for Republicans who have a vested interest, as always, in making people too afraid of change to think about how things could be better instead.
You can follow Willis on Twitter here.
What I’m reading
My top two Supreme Court reads that I found extremely helpful for thinking about our current crisis
New York Magazine’s Eric Levitz explains how McConnell’s politics are consistent — but why he can’t be honest about his intentions. He describes an extremely right-wing court as “an ideal setup for an anti-majoritarian ideological movement. “In this context, the existence of a counter-majoritarian policy-making entity — that is broadly perceived as being above politics and which can advance conservative goals by declaring them constitutionally necessary (as opposed to having to persuade the public of their substantive merit) — is immensely valuable to the GOP,” he writes.
The New York Times’ Jamelle Bouie argues against “judicial supremacy” and documents how the Supreme Court was never meant to be the only arbiter of the meaning of the Constitution: “The United States may not be a ‘pure democracy,’ but it’s not a judgeocracy either, and if protecting the right of the people to govern for themselves means curbing judicial power and the Supreme Court’s claim to judicial supremacy, then Democrats should act without hesitation. If anything, they’ll be in good historical company.”
A majority of young adults in the U.S. live with their parents for the first time since the Great Depression.
A big topic of debate on the left right now is the Biden campaign’s decision to refrain from door-to-door canvassing. CNN: Knocked off the doorsteps by the coronavirus, Democrats craft new plans to reach voters. Politico: Down-ballot Dems split from Biden on door-knocking.
David Dayen gets passionate arguing that corporations can do a lot with “just loans” from the government’s bailout.
Isabel Wilkerson’s world-historical theory of race and caste (beautifully written review and critique by Sunil Khilnani).
COVID-19 erased 25 years of vaccine progress in 25 weeks.
How liberals opened the door to libertarian economics.
How Europe’s coronavirus approach differs from the US.
“He just empties you all out”: Whistleblower reports high number of hysterectomies at ICE detention facility.
Buying Myself Back: When does a model own her own image?
“I might even go so far as to say that this face mask is more guaranteed to protect me against Covid than when I take a Covid vaccine.” — CDC director Robert Redfield.
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