The Crumbling Debate

Debates can be fun and informative. And this one was both and neither.

So, our democracy is crumbling.  And the Supreme Court is the tool of choice for dismantling it.  To save our democracy, we must fix our broken Supreme Court by adding seats.

These were the opening words of Tamara Brummer, a labor organizer and director of national outreach for Demand Justice, a progressive organization dedicated to putting reliably biased judges on the bench. She was joined in the affirmative side by Dahlia Lithwick, who opened thus:

You know, you’ve just heard my opponent suggests that we are not currently in desperate times.  I just want to flag for those of you who are not watching the court tick-tock the way we are, that just in the last few weeks, the court reinstated a very controversial Remain in Mexico policy, made constitutionally permissible abortion impossible to achieve for 90 percent of the pregnant people in Texas.  All of that was done on its shadow docket.  The courts have been happy on the shadow docket to set aside an eviction moratorium.  Happy on its shadow docket to change COVID restrictions.

This is all being done unsigned.  We don’t quite know what the law is.  And this has been done while Justices Barrett and Breyer are taking to the hustings.

Was there any principled reason to offer? If you’ve got an hour to waste, here’s the whole debate.

If watching this would be your second choice to sticking needles in your eyes, I’m here to help. The negative side, argued by Yale prawf Akhil Reed Amar and Supreme Court litigator Carter Phillips, argued two basic point, first that the perspective provided by Lithwick and Brummer was nuts, for which they were duly chastised by the moderator since calling a completely baseless assertion of hysteria nuts isn’t allowed in a polite debate.

The second argument was that it will never happen, both because there is no serious support for such a radical scheme among Democrats in positions of power and because it would set off a partisan battle of each siding adding new justices to take a majority. While both of these are true, although the former may not hold up as well as some might hope, these pragmatic concerns failed to address the core argument for packing the court.

The sky is falling. It’s an existential crisis. It’s now or never, and something must be done!

And it’s the Supreme Court that year after year is making it easier and easier for Donald Trump’s Republican party to entrench minority rule with voter suppression and partisan gerrymandering.

There is no question the Supreme Court is working just fine for the people closest to it, the justices, the elite lawyers, and the law professors who win prestige by their proximity to the court.  But in a democracy, the Supreme Court isn’t supposed to work for a legal aristocracy, it’s supposed to work for everyone.  Far too often, when people like you and me say the Supreme Court is broken, the so-called experts, these lawyers, the law professors, the journalists, and even the justices themselves, tell us to trust the system.  So, when the justices gut decades-old protections for voters of color in the south, trust the system.  When the justices kill a law that tries to keep billionaires from buying elections, trust the system, y’all.  When time and time again they side with corporations over workers, trust the system.

This is a popular argument on the left, that the Supreme Court is failing society by not delivering the right decisions that progressives demand. While Lithwick contended that they don’t want to pack the court to achieve hegemony over the conservative wing, but merely  to provide “balance” with one vote more than them, Brummer’s argument reflected the more foundational grievance of the Demand Justice-level perspective: the Supreme Court isn’t ruling the way we want and so they must be blown up and taken over “for the people.”

The debate, hosted by Northwestern Law School under the cool name, Intelligence Squared, was very informative, not so much because it offered sound arguments for the resolution, which were shallow, hyperbolic and stunningly disingenuous, or against, which were largely practical and barely scratched the surface of why this change could undermine the purpose of having a judiciary at all. It was informative about how shallow political argumentation has become, how it’s designed to appeal to the most superficial and politically ignorant masses rather.

Is the sky falling? If you believe we’re on the verge of a fascist takeover of the nation because Trump “stole” two or three seats on the Supreme Court, and are certain they’re about to end voting rights for all together with the right to abortion, then radical measures are necessary. Not because they will work, but because something must be done and we can’t just sit around hoping that it will all work out in the end.

But if you don’t subscribe to the view that we’re doomed, then the argument dies a brutal, painful death by suicide. And, despite being informed to the contrary hourly during Trump’s term in office, the sky did not fall and the Supreme Court did not kneel at the foot of its overlord.

What the debate failed to do was offer the deeper argument that the efforts put into undermining its integrity and legitimacy will inure to no one’s benefit. If, as the proponents of the resolution argue, the Court was changed to manipulate its political complexion away from the conservatives and toward, if not completely owned by, progressive allegiances, would the rulings matter anymore? If we know, in advance, where the Court will come out because the majority was bought and paid for, then it’s not a court but a rubber stamp for a political ideology.

Of course, that’s what the left believes the Supreme Court is now, even if it didn’t quite steal the seats but rather beat the Dems in Senate partisan gamesmanship. The difference is that the Court has made rulings the left hates, even if they’re being disingenuous about what the rulings mean, but they’ve also ruled in ways that the left prefers, and ways in which any legitimate Supreme Court should rule.

Maybe the sky will fall one day, and we’ll be compelled to take arms against a government that has failed to keep our Republic and sustain life, liberty and the pursuit of happiness. But today is not that day, and this debate failed to present the arguments that we, the people, need to hear.