Now We Broke the Supreme Court, Too

Photo Credit: Stephen R. Brown/Associated Press

In the year 2020, it seems that Murphy’s Law has become not merely an occasional nuisance but a binding norm. As norms continue to die violent deaths all around us, it almost seems logical that in such a relentlessly cruel year, this would be the one norm that sticks around. It is against this backdrop—a global pandemic, an economic crisis, a bitter and contemptuous presidential election—that we find ourselves with yet another empty seat on the Supreme Court. And we know just how hard it is to fill one of those these days.

The last time this happened, I wrote on this blog about the death of the United States Senate as a storied institution. In the wake of now-Justice Kavanaugh’s confirmation, what was once heralded as “The World’s Greatest Deliberative Body” had degenerated into the same cesspool of polarized squabbling that typifies the rest of our nation. And now, with the death of Justice Ruth Bader Ginsburg—an all-time legend on the Court—I fear we are on the cusp of irrevocably breaking what might already be the last institution standing. How did this happen?

The answer, at first glance, seems quite simple. It all started when Justice Antonin Scalia—another all-time legend—died in February 2016 and the Republican-controlled Senate refused to grant so much as a hearing to Judge Merrick Garland, President Obama’s nominee for the seat. Things only degraded once President Donald Trump was elected and Senate Majority Leader Mitch McConnell did away with the filibuster for Supreme Court nominees so the Republicans could ram through their preferred candidate, now-Justice Neil Gorsuch. It was, in many ways, a stolen seat. Then came the mess surrounding Justice Kavanaugh, which I will not rehash here. These overtly political machinations made the notion of an impartial, nonpartisan Supreme Court seem like a sham. In the wake of Justice Ginsburg’s death, and the subsequent rush to replace her with staunch judicial conservative Amy Coney Barrett, that veneer of judicial comity seems all but gone. But is the answer really that clean? Did this process really only start four and a half years ago? Or should we look further into the past to find the roots of our highest court’s degradation? Well, of course we should, because problems this grave don’t merely arise over the course of a few years.

One common refrain I have heard among my more liberal friends in reaction to Justice Ginsburg’s passing is that it is profoundly unjust for the death of one 87-year-old woman to imperil the rights and liberties of entire classes of Americans—that any system of government which allows this to happen is fundamentally flawed. I would agree, if that were truly the system of government we were supposed to have. But here’s the thing: that’s not how it’s supposed to be. That’s not how our federal government was ever intended to operate. Our Constitution established the Supreme Court for fairly narrow purposes: to serve as the court of last resort on appeals in particularly important cases and to have original jurisdiction in niche areas like consular law. Indeed, in the Federalist No. 78, Alexander Hamilton referred to the judiciary as the “least dangerous” branch because of how limited its reach was. “[T]he judiciary, from the nature of its functions,” he said, “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” It wasn’t until Marbury v. Madison in 1803 that the Court even had the power to review and invalidate laws—and that’s only because Chief Justice John Marshall (another absolute legend) straight-up invented it.

That power, while awesome indeed, exists nowhere in the text of our Constitution and was never intended to be the primary means by which the rights and liberties of everyday Americans are to be protected. The Constitution itself, by way of the Bill of Rights and through its careful enumeration of federal powers, was supposed to serve that function. When its failings became evident before and during the Civil War, we changed it. The Reconstruction Amendments even more forcefully guarded individual rights, this time against state government infringement as well, and gave the power to enforce those protections to Congress, not the courts.

So am I saying that Chief Justice Marshall broke the Supreme Court when he articulated his vision of judicial review? Of course not. Judicial review is a cornerstone of our unique form of government and when used responsibly is as powerful a protector of individual liberty as any mechanism in our Constitution. Judicial review has been the death knell of many horrendous laws—laws that segregated schools, prohibited interracial marriages, and protected government officials from public criticism. But it has also led to some equally horrendous outcomes—the Court has upheld laws allowing for the internment of Japanese Americans, the incarceration of individuals for minor drug crimes, and overturned key portions of laws allowing us to regulate our elections. And the effect of this power has had a distortionary effect on our political process. Momentous policy decisions that could have been more cleanly debated and resolved through our legislatures ended up at the Court instead. Time and time again, those who found their positions to be losers in the field of public debate—whether their positions were righteous or not—turned to the courts to achieve victory by other means. That’s how you end up with an environment where individual seats on the Supreme Court become important enough for political parties to steal them. 

Which brings me back to RBG. Policy goals achieved through the judicial process are inherently fragile and often fleeting. That’s because it’s easier to overturn a court decision than it is to repeal a law already on the books. Just look at Obamacare—the Republicans couldn’t overturn it when they had control of the Presidency, the House, and the Senate, but the Supreme Court could have destroyed it in one fell swoop back in 2012 if Chief Justice Roberts had changed his vote. That’s a lot of power for one guy to have. And that’s illustrative of the dangers inherent in leaving too much up to the whims of unelected judges. And that implicates other problems as well, namely that Supreme Court decisions are inherently undemocratic. When gravitational shifts in policy come from nine unelected geriatrics, there tends to be backlash. In fact, that was one of Justice Ginsburg’s main criticisms of the Court’s ruling in Roe v. Wade. When seven unelected old white men—rightly or wrongly, that’s up to you to decide—summarily invalidated all abortion restrictions nationwide, it inspired significant blowback. (For my friends who, like me, support a woman’s right to choose, think instead of Citizens United and how that made you feel.) My point is not that one of these decisions was right and the other wrong, but that they made sweeping policy determinations with input from exactly zero American voters. Decisions that reach too far too fast, Justice Ginsburg said, don’t do much to truly serve the rights they protect. “Doctrinal limbs too swiftly shaped,” she said, “may prove unstable.”

And that is how we broke the Supreme Court. By allowing polarization to fester and poison the well of our legislatures, rendering Congress completely and totally unable to govern, we put our biggest questions of policy into the hands of an institution unable to adequately guard them against the backlash it inherently creates. Now, I know what a lot of you would say. You’d want to point out that when it comes to an inability and unwillingness to properly govern, there is one party in Congress that has been much worse than the other, especially of late. And you’d be entirely correct. I’m not going to stoop to my usual penchant for both-sides-ism this time. But my point still stands. We are a country divided, with two slices of the electorate that have now lost all respect for each other and have no inclination to look for any common ground. From that awful state we have elected legislators with no ability or desire to work together, solve problems, and govern. And as a necessary result of that impasse we find ourselves living under a system of government where the death of one 87-year-old woman has left everyday Americans fearing for their rights. But that’s not the Supreme Court’s fault. It’s ours.

Everyone is Losing the Coronavirus Culture War

I had a very enlightening conversation a couple of weeks ago with a friend of mine, someone who is significantly to my left politically. We were talking about the same topics everyone is talking about these days: the coronavirus pandemic, our government’s response to it, and the ever-present specter of a reopening economy. But what made the conversation so enlightening was not that either of us learned anything new about public health or macroeconomics, or even that the two of us agreed that having to choose between the two was a false dichotomy. What was enlightening was that we, as two politically distinct individuals, could agree on anything at all when discussing these things.

As I struggle to take in the news each day (as I’m sure all of you do too), what worries me most is not the fact that the coronavirus has already killed more Americans than the flu did all of last year or that we still don’t fully understand how the virus operates on the human body. Rather, I am most frightened by the fact that America’s toxic political culture—in which we as a people are divided sharply along partisan lines, with each camp existing in a contained, parallel universe that operates with a different baseline of truth and reality than the other camp’s—has extended its cancer-like spread beyond purely political matters and now dictates how the American public is processing a literal global pandemic. This is, for painful lack of a better word, dangerously unhealthy.

We are not going to be able to recover easily—or perhaps ever—if we as a nation cannot agree on whether the virus is real, if it is dangerous, if the experts have our best interests at heart, and if we should want to minimize the loss of life from this worldwide threat. As a person who leans strongly libertarian in my politics, I sympathize with the reaction of many on the political right to the strict and pervasive lockdown orders issued by governors all over the country. It all happened so swiftly and with such rhetorical force, accompanied by constantly shifting projections, goals, and deadlines, with very little in the way of satisfying explanations. Such abrupt and heavy-handed state action is galling and offends basic conservative notions of autonomy, deliberation, and the consent of the governed. But none of that automatically means it was wrong, or that it is in our best interest to ignore it. Just because you have a philosophical objection to your governor using emergency powers to keep you out of restaurants and hair salons doesn’t mean you are doing what’s best for you, your children, and your neighbors by disobeying it. In fact, it might mean that there is an actual emergency—one so novel and unexpected that even people who are in the best position to understand it didn’t immediately know how to properly respond to it. And if that’s the case, then we as laypeople certainly don’t know what’s best.

And therein lies the dangerous assumption underlying so much of the anti-lockdown rhetoric. Those who want to rush to reopen America’s economy seem to think that medical experts (especially those working for the government) don’t really know what’s best for us or, if they do, that they don’t have the best interests of ordinary citizens at heart. Again, I am not devoid of sympathy with this view. Our “expert class” has betrayed us time and time again: they told us there were weapons of mass destruction in Iraq; they told us that the housing market was healthy in 2007; they told us Donald Trump could never be president. But when they’re telling you that by leaving your homes and assembling in crowded places you are increasing the spread of a deadly disease, do you want to take that risk and assume they’re wrong? Do you really want to believe that medical doctors have suddenly abandoned their oaths to do no harm? Are you truly willing to believe that our government has elected to ravage our nation’s economy to serve some elaborate hoax? Are you blind enough to dismiss as coincidence the fact that the only people downplaying the effects of the virus are those with a political incentive to do so?

But I’m not writing this post just to wag my finger at the discontents who want haircuts. I also take umbrage at my more liberal friends who dismiss concerns over the economic effects of the pandemic as a “conservative” talking point. This couldn’t be farther from the truth and only exacerbates our country’s destructive political divide. Gun-toting protesting man-children aside, voicing concern about the economy doesn’t mean you’re a domestic terrorist and certainly doesn’t mean you want to sacrifice grandma to the stock market. Indeed, as so many of my liberal friends were fond of pointing out before this crisis came around (but are notably silent on now), the economy is more than the stock market. (Indeed, we don't even need to send people back to work for stocks to rise.)The economy is your friend who drives for Uber to pay rent and your neighbor who works at a nail salon and your cousin who prefers to buy her gluten-free flour at Kroger instead of Whole Foods. Our economy is fueled by everyday Americans who work hard and spend their money at ballparks, movie theaters, and restaurants.

And these well-meaning government lockdowns have the mortifying potential to make all of those things disappear forever. Every day, I am filled with existential dread over the plight of the world-class restaurant scene in my adopted hometown. It is not an exaggeration for me to say that I very well may have already eaten at each of my favorite restaurants in Richmond for the last time. Businesses that rely on mass gatherings of people to generate paper-thin profit margins—live theatre and restaurants especially—simply cannot survive even a few more weeks of our current status quo. The Nordstrom where I used to work has already closed permanently. J. Crew filed for bankruptcy last week. All of these closures (and I assure you, there are a staggering amount yet to come) will mean lost jobs, lost tax revenue, and ruined livelihoods. Twenty million Americans lost their jobs in April. The jobless rate is approaching Great Depression levels. And we’re still in the early stages. The long-term effects will be catastrophic, and no sector of our economy will be spared. Smaller and less prestigious colleges and universities will close, movie viewing will become an exclusively home-based activity, and millions of jobs will simply never come back.

The worst part is that I don’t think enough people who are making policy decisions (and those who are so quick to condemn concerns about our economy) understand just how bad this will get if our current state of affairs continues for much longer. There will come a time when we must ask ourselves the coldly utilitarian question of which option will cause fewer deaths: keeping everyone in quarantine or opening things back up. This isn’t as simple as the train-track problem from your freshman ethics class; there are millions of people on both sides of the fork. And regardless of the answer, our government has a responsibility to spend whatever amount of money is necessary to minimize the number of shuttered businesses and lost jobs. Because no lockdown is worth it if there isn’t an economy to reopen once it’s over.

And so we find ourselves in a uniquely dangerous moment, facing disease, death, and worldwide economic depression at a time when we have no faith in the institutions that must help us through this crisis and no faith in our fellow Americans who must get through it with us. If we can’t find some way to step back, take a hard look around us, and realize that we really are in the same boat, that we really are at our best when we care about one another, and that we have to pull together and act as one nation to survive this, then we’re doomed. For some time now, the American people have been teetering on the edge of a cliff, inching ever closer to the status of a failed body politic. Turns out it might just be an invisible virus that gives us that last nudge into oblivion.