The trouble for Belkin and other Democrats is …[in packing the court's] political feasibility—and not just because the party has to win the Senate and the White House first. Joe Biden has shown reluctance to eliminate the filibuster, which Democrats would need to do to pass a court-expansion law, and he is outright opposed to increasing the justices’ numbers, disinclined to take any radical action that would further exacerbate partisan tensions. “We need to de-escalate, not escalate,” he said during a speech in Philadelphia over the weekend. In a local-news interview last summer, he warned that Democrats would “rue” the day they packed the Court because Republicans would simply do the same the next time they were in power.
Elaine Godfrey in The Atlantic
I'm going to argue the opposite of a previous post, "De Moderatione". In that post I argued that moderation is called for in a situation in which things are so fragile and in which we need to restore some stability. Clearly Biden is the man for the job if that is our situation now, and I think it is. But even as I was writing that, the opposing arguments were gathering in the back of my mind. It comes to a head in thinking through where you stand on court packing. After some initial resistance, I am coming around to thinking it's the right thing to do even if clearly it's not the moderate thing to do.
Here's why I think Dems, assuming they win the Senate, need to ditch the filibuster and pack the courts.
Biden thinks we can get things back to normal. He's selling a feel-good return to they things were before Newt Gingrich and Rush Limbaugh began the destruction of our political norms and institutions during the Clinton years. He thinks the old norms can be restored. He thinks that most people in the Senate are reasonable, decent people. As a political strategy, maybe that's ok, but as a governing strategy it will be a disaster.
The right-wing fanatics, aka the GOP, are counting on this kind process moderation. They are counting on Democrats being boy scouts who follow the rules because the GOP has become so adept at using the rules to obstruct and to render the Dems powerless. The GOP will use the rules and their propaganda platform on FOX for the next four years to make the Dems seem feckless and impotent and then to ridicule them for their inability to get anything done. And this will pave the way for their return to power when they will resume their naked aggression in destroying the norms and institutions in their long-term project to turn the country into an Eastern European or Latin American-style, right-wing autarchy dominated by the 1%.
High-minded Democrats will argue that they cannot use extremist methods to restore normalcy. They are right about that, but they are wrong to think that normalcy can be restored. There's no going backwards. A new set of norms based on effectiveness in solving problems must be fought for to establish a future normal. Past normal no longer works. The GOP understand this in a way most Dems don't. The goal is not a return to normalcy but effectiveness in governing. The Democrats will be elected for cycles to come if they actually solve problems. There will be no real stability or normalcy until we have a government that governs in a way that's responsive to the needs of most Americans.
I think that packing the court won't de-legitimate it so much as neutralize it. It will weaken its authority in shaping policy, which should be the domain of the legislatures, who in turn are accountable to the electorate in ways that courts cannot be. But in order for the legislatures to legislate, they need to remove the obstructions that prevent them from getting anything done.
So if they are to solve problems, it starts with the filibuster and packing the court. Liberal Democrats make an idol of the Supreme Court because of the role it played starting during the Warren years of imposing policies that were unfeasible to legislate. In Roe it went too far, and I'd argue that we would not have half the political strife that we're experiencing now if the courts just left it alone and allowed individual states to make their own laws about abortion.
There are a broad range of culture war issues, but at the very heart of it is abortion. There is something deeply troubling and repugnant about abortion, and this is the Democrats' blind spot. They have come to unthinkingly see it the same way the GOP sees gun rights. It's a shibboleth of team loyalty, a form of group think, and it has, imo, created far greater long-term problems for us as a society than whatever remedies it delivered. It should have been handled in the legislatures, not imposed top-down from the courts.
So I don't think that the biggest danger posed by an ideologically right-wing court is its overturning Roe, but in its continuing to represent the interests of the 1% as it did in Citizens United and in its complicity with the GOP agenda to suppress voting rights.
So I'm fine with neutralizing the courts. A politically neutralized court won't accomplish anything big, which is how it should be, but more importantly it will be less likely to subvert legislative efforts to make the country more democratic. And it will be less likely to obstruct the good-faith efforts of responsible legislatures to tackle practical problems associated with climate control, voting rights, income inequality, and health care.
So pack away, Dems. I just hope Uncle Joe doesn't get in the way.
Friday Update: David Leonhardt in his NYT Friday Morning newsletter reinforces the argument I make above:
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I'm arguing that this is the time to dial back an "all powerful Supreme Court". It's anti-democratic, and Liberals have always been wrong to lean too much on the court to get the policies they want. |
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