Wednesday, June 27, 2018

We're Thinking About the Court All Wrong

So Justice Kennedy announces his retirement and the internet blows up. Liberals are screaming in fear because they believe the court will be stacked against them for the next 20 years, and conservatives (or whatever they are nowadays) are shouting in triumph that they will finally have a bulletproof majority on the Court.

All of this is wrong. All of it.

I get that the court is, by necessity, something of an all-or-nothing institution. When it makes rulings, its rulings stand - at least until a later court overturns them. Another casualty of the politicization of the law may be the stare decisis standard, which appeared to take a bit of a hit today in the Janus case. I fear that future courts, both right and left, will see their job as undoing the work of the "other side" in the previous generation.

The reality is that we live in a diverse, often divided nation. And we live under a political system that is supposed to value that diversity, and to produce outcomes that, however imperfectly, reflect everybody's voices. If only 20% of people want something, they shouldn't be able to impose their will on the other 80%. That's what we call democracy, and it's what we all claim to value.

Yet the celebration on the right, and the yearning on the left, for a court supermajority are both repudiations of these foundational ideals. It's not just that the court is (by some necessity) a non-democratic institution. How we think about the court betrays how little we really value our democracy.

Take the issue of Roe v. Wade, one of the most oft-cited cases for the importance of getting "your" side to dominate the court. I get that there are people who believe that abortion should be eradicated entirely. I also get that there are people who would like it to be restricted much more than it is. Just as there are people who think it should remain available, and people who would like to widen that availability. I spent a semester in grad school poring over General Social Survey data on Americans' attitudes towards abortion. They are diverse, and remarkably stable, and on balance tend to fall into the "keep it legal but hopefully rare" area, with a large standard deviation around that mean.

So if you celebrate winning a supermajority on the court so that Roe can be overturned and abortion made illegal everywhere, you're in essence saying that winning a complete and total victory on this issue is more important to you than democracy. That even if your view is only held by 20% of the American population, you think you should win anyway and impose that view on the 80% who think differently.

The alternative approach, which is actually far more consistent with our claimed democratic values, would be to try to persuade enough of that 80% to see things your way, so that your view prevails across the population. This is basically why gay marriage is legal now - not because a court said it should be, but because over the course of a couple of generations most Americans have come to agree that people should be able to marry whom they want. Want to change that? Convince them back the other way (good luck).

That approach hasn't worked well on abortion, as the GSS data shows. Hence the arguing over the court - and the hidden abandonment of democratic ideals.

You can substitute any number of other issues for abortion here - gun rights, labor unions, travel bans, take your pick. For those who take the "long view" on the court, who are looking out over the next 20-30 years, it's not any one issue. It's the desire to see "their side" win all of the battles over that period.

If we really believed in democracy - if we really believed that we make our best decisions collectively when everybody's voice is in the mix - we wouldn't want a supermajority on the court. Or a permanent majority in Congress, as Karl Rove used to dream of. If we really believed in democracy, we would want Justice Kennedy replaced with another moderate, swing-voting judge. If Elena Kagan stepped down, we would want her replaced with another liberal justice. If Clarence Thomas retires, we would want him replaced with another conservative.

If we really believed in democracy that's what we all would want, regardless of our own personal views. But we don't really believe in democracy. We only support it when it means we get to win.

All of this is compounded by the fact that we are living through the most anti-democratic Presidency in modern US history. Trump has not the slightest regard for the views of others, and - by his own repeated admission - he wants to win all the time. He doesn't care about what other people think. If he could impose his will on the world, he would, even if nearly everyone disagrees with him.

The mood of the country as a whole is increasingly anti-democratic. Sure, lots of folks are saying, go out and vote. Voting is not a reliable indicator of democracy - just ask Zimbabwe, or pre-1990 South Africa, or Saddam Hussein's Iraq. On all sides, the act of voting - indeed, all political acts - have taken on existential proportions. Everything has become Chuck Norris' "1000 years of darkness" warning, on all sides.

Don't believe me? Watch Tucker Carlson, speaking to a national audience of millions, equate the desire to welcome immigrants with suicide. Translate that into Kinyarwanda and Carlson would fit in nicely with RTLMC radio just ahead of the Rwandan genocide.

This is not Schoolhouse Rock America anymore. We are not e pluribus unum - rather, our motto ought to be e unum pluribus. Out of one have come many. Where there was one nation, united by a common set of political values, now there are many, divided by fear and anger and hatred.

For those who look at Kennedy's retirement and say, this is why I voted for Trump - who believe that for all of his faults and problems, it was worth it to "secure the court" for the next generation - you're entitled to your reasons. If you feel happy today, you're entitled to that too. What you're not entitled to do is claim that you value democracy. Because in the end, if we don't value each other more than we value winning out over each other, then what are we?

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