Yesterday, I didn’t get a chance to comment on the posts about increasing the size of the Supreme Court. When I started to write a comment, it grew long enough where I figured that I might as well create a post of its own.
The overarching question is what to do when McConnell and other Senate Republicans “violate democratic norms.” That’s weak phrasing. They have desecrated something sacred. Using this language of violation highlights that certain things should be inviolate, in a political sense, because the entire system of government depends on their preservation.
What have McConnell et al. violated? The political constitution, small “c,” of the United States as a democratic society. I’m using the term in the same way that Walter Bagehot, author of The English Constitution, did. Aside from the formal operation of any government, there is the “unwritten constitution” that animates and guides the formalistic side. Without the unwritten constitution, formalism easily devolves into a raw exercise of power within the boundaries of formal rules. Without it, opportunists and zealots will bend and break the formal institutions to suit their purposes.
When democracy collapses, formal institutions often remain, at least for a little while to provide a fig leaf of respectability. Officially, the Roman emperor was just a collection of existing titles, and the Senate continued to operate in the way it always had. The Reichstag continued to exist from 1933 to 1945.
While the current situation in the Senate is in no way as dramatic or sweeping as the creation of imperial Roman rule or the Nazi seizure of power, it is nonetheless a desecration or destruction of the political constitution. Formal institutions still exist, but they are either powerless, or a tool to undercut opponents who continue to operate within boundaries that the anti-constitutional faction have already negated. While there is a much bigger problem with constitutional desecration, since there are many Republican voters who believe that democratic opposition is illegitimate, we’re focused for now on the Senate and the Supreme Court.
The best response may not be packing the Supreme Court, or event alking about it right now. I think it was counter-productive, in a momentary political sense, for any Democratic leader or opinion-maker to start musing about that option, so soon after Justice Ginsberg’s death. It merely adds to the fevered politicization of a moment when we should be honoring her life, and fuels further Both-Siderism, especially in the press. However, in discussions like these, outside the forums of press conferences and op-eds, it’s worth saying that, whatever the solution is, it’s not going to involve working within the old boundaries and understandings.
It’s painful to admit that something sacred is dying, or has died. Many of those still in denial are likely to cling to the existence of formal institutions (“the Senate still rules in Rome”), even though the new regime is cynically using those institutions to keep people from opposing their public murder of the old order. Acceptance of the political constitution’s death requires the abandonment of hope that it will magically revive. “There must be some way that what we see with our own eyes right now is just a continuation of what we had before. If not, there must be some way, operating in the old ways, to restore the old order.” At some point, such sentiments must themselves die. Otherwise, we wander pointlessly in a dreamscape, oblivious of current realities, impotent to change them.
That’s not to say that something like the old order, the original political constitution, cannot be created. Democracy died in Spain in 1936, but a new democracy emerged after Franco’s death in 1975. Again, if we are talking about the restoration of the understandings that underpinned the operation of the US Senate and Supreme Court, we’re talking about a much smaller project than re-creating Spanish democracy after 1975, or German democracy after 1945. However, no project, big or small, will be possible without the recognition of its need.
Tyrannies don’t end because they succumb to sweet reason. The exercise of power will be required to resurrect our political constitution. Expanding the Supreme Court may not be the best solution, but it is not ipso facto the wrong type of solution.
At the core of our ongoing conversations about the Supreme Court and other institutions is the question of legitimacy. I’m arguing that some radical but legal solutions being proposed, such a massive court-packing, would be illegitimate while others contend the existing system has already lost it.
To some extent, the debate is unresolvable because the concept itself is so elusive. Formal political philosophy is not much help:
If legitimacy is interpreted descriptively, it refers to people’s beliefs about political authority and, sometimes, political obligations. In his sociology, Max Weber put forward a very influential account of legitimacy that excludes any recourse to normative criteria (Mommsen 1989: 20). According to Weber, that a political regime is legitimate means that its participants have certain beliefs or faith (“Legitimitätsglaube”) in regard to it: “the basis of every system of authority, and correspondingly of every kind of willingness to obey, is a belief, a belief by virtue of which persons exercising authority are lent prestige” (Weber 1964: 382). As is well known, Weber distinguishes among three main sources of legitimacy—understood as the acceptance both of authority and of the need to obey its commands. People may have faith in a particular political or social order because it has been there for a long time (tradition), because they have faith in the rulers (charisma), or because they trust its legality—specifically the rationality of the rule of law (Weber 1990 ; 1964). Weber identifies legitimacy as an important explanatory category for social science, because faith in a particular social order produces social regularities that are more stable than those that result from the pursuit of self-interest or from habitual rule-following (Weber 1964: 124).
In contrast to Weber’s descriptive concept, the normative concept of political legitimacy refers to some benchmark of acceptability or justification of political power or authority and—possibly—obligation. On one view, held by John Rawls (1993) and Ripstein (2004), for example, legitimacy refers, in the first instance, to the justification of coercive political power. Whether a political body such as a state is legitimate and whether citizens have political obligations towards it depends, on this view on whether the coercive political power that the state exercises is justified. On a widely held alternative view, legitimacy is linked to the justification of political authority. On this view, political bodies such as states may be effective, or de facto, authorities, without being legitimate. They claim the right to rule and to create obligations to be obeyed, and as long as these claims are met with sufficient acquiescence, they are authoritative. Legitimate authority, on this view, differs from merely effective or de facto authority in that it actually holds the right to rule and creates political obligations (e.g. Raz 1986). On some views, even legitimate authority is not sufficient to create political obligations. The thought is that a political authority (such as a state) may be permitted to issue commands that citizens are not obligated to obey (Dworkin 1986: 191). Based on a view of this sort, some have argued that legitimate political authority only gives rise to political obligations if additional normative conditions are satisfied (e.g. Wellman 1996; Edmundson 1998; Buchanan 2002).
Emphases all mine.
I tend toward a Weberian view of legitimacy. Indeed, the purely descriptive view strikes me as tautological and unhelpful. Alas, the normative view is more elusive, reminding me of Potter Stewart’s infamous description of obscenity: I know it when I see it.
Legitimacy in a normative sense can exist in an authoritarian state. So long as the people believe the king or other ruler has the right to rule and is doing so within the traditions of the society, he’s legitimate. Conversely, it’s hard to see how a totalitarian one can be seen as legitimate, given both the coercive nature of state control and that people aren’t free to express opinions.
Legitimacy would seem easier to assess in a democratic system, given regular elections, freedom of expression, and routine polling of public opinion. But democracies are built on a notion of popular sovereignty and it’s quite possible for a system to lose legitimacy even with fair and free elections.
Aside from very small communities, democracies have to be of the representative kind to function. And there are all manner of systems for allocating representatives in operation around the world, none of which are inherently illegitate. Parliamentary systems aren’t inherently more or less legitimate than presidential or mixed ones. Unitary systems aren’t inherently more or less legitimate than federal ones. Ditto single-member districts vs proportional representation or all manner of other ways of allocating votes.
Indeed, a purely representative system could well be illegitimate. An election in Iraq, for example, treating it as a unitary state creates the dreaded “an election is a census” problem, wherein the Shia will always rule over the Sunnis and Kurds. In such a polity, legitimacy is challenging but almost certainly requires some high degree of regional autonomy and incredibly high protection for individual and group rights.
As discussed in my earlier post on the changing nature of American federalism, our country is radically different than the one the Constitution was designed to govern. I tend to think that our present system remains legitimate because it operates within a set of longstanding rules and that the American people, broadly speaking trust those rules.
It didn’t lose legitimacy when George W. Bush won the Presidency in 2000 despite having half a million fewer votes nationally than Al Gore. The race was run according to the agreed-upon rules. Indeed, the reverse could well have happened and it nearly did in the very next election, where Bush won a larger victory over John Kerry who could have won the election if a relative handful of votes in Ohio had flipped.
The 2016 election was more problematic given the magnitude of the deficit: nearly three million votes. But, even though my strong preference was in the other direction, I didn’t consider the outcome illegitimate because of that. Clinton failed to turn out the vote in the Rust Belt and the fabled “Blue Wall” failed her. Tough luck.
To use a sports analogy, I still adamantly believe Dez Bryant caught that crucial pass in the playoff against Green Bay in 2014 and that the referees cost the Dallas Cowboys a touchdown and likely a trip to the NFC Championship game. I nonetheless believe the New England Patriots were the legitimate champions of the NFL for that season.
To the extent there is a problem with any of those outcomes, it’s about the appearance of cheating.*
In 2000, I thought the Democrats were playing fast and loose with the rules during the recount and that the Florida Supreme Court illegally changed the rules of the game after the fact, so welcomed the outcome in Bush v. Gore. But Democrats quite rightly fumed at the Republican Secretary of State in Florida seeming to put her thumb on the scale. And the fact that the winner’s brother was Governor of Florida at the time and was using his power to help preserve the marginal outcome didn’t help. (The Butterfly ballots, hanging chads, and other issues struck me as tangential to legitimacy. My preference then and now is to follow the pre-existing rules, which were written under a veil of ignorance.)
In 2016, the primary legitimacy concerns, in my judgment, had less to do with the popular vote loser winning the race than the way the race was run. While there is no way to know whether various forms of Russian interference changed the outcome, they certainly tainted the race. (Indeed, undermining its legitimacy was as much the point as getting Trump elected.) Even more importantly, widespread actions by Republicans in many states to rig the system to make it harder for Blacks and other Democratic-leaning constituencies to exercise their franchise were deeply troubling.
And, to close the circle on the sports analogy, while I simultaneously believe Bill Belichick is the finest coach and Tom Brady is the greatest quarterback of the Super Bowl era, their repeated flouting of the rules to gain a competitive advantage does indeed taint their legacy in my mind. I still count their rings and support their eventual election to the Hall of Fame on the first ballot.
Additionally, while I don’t find a slight skew of the system towards rural voters inherently problematic, the fact that the system is stacked in multiple ways to that end is indeed troubling. Having a Senate that’s institutionally skewed to one set of interests that happens to coincide with one political party is defensible in a federal system with enormous social and cultural diversity. But stacking that with a President elected through a similarly skewed system and then having said President and Senate make lifetime appointments to the Supreme Court to cement that advantage for decades is a bit much.
My strong preference for fixing all of this—and the one that would be most legitimate—is to abolish the Electoral College in favor of a national popular election for President and make Supreme Court appointments term-limited (say, 12 years) rather than for life. Alas, both would require Constitutional amendment, which is very hard indeed. It’s conceivable that SCOTUS reform could get passed. I don’t see how to get small states to give up their representative advantage.
In terms of things that don’t require such broad consensus, getting rid of the filibuster, as we did for judicial appointments, may well help and is almost certainly coming if the Democrats take back the White House and Senate in a few weeks. (But, of course, the filibuster would have kept Brett Kavanaugh off the bench, so pick your poison.)
I would strongly support increasing the House of Representatives. While one per 30,000 residents, as envisioned by the Constitution, might be unwieldy, I wouldn’t oppose it. But I’m not really seeing much talk about it.
It’s unclear to me whether the National Popular Vote Interstate Compact, which we’ve discussed here many times over the years, is Constitutional but it would be a legitimate work-around to amending the Constitution and would have the same effect as abolishing the Electoral College if upheld.
I would think any and all of those changes would be legitimate, in that, while they would have partisan and regional impact, they would be seen as within the rules and reflective of the people’s representatives.
As discussed in the Federalism post, I would also think granting statehood to Puerto Rico would be perceived as legitimate. While it would give the Democrats two more Senators, five or six more Representatives (absent an enlarged House), and seven or eight Electoral Votes, the Republican Party platform has actually been more enthusiastic about PR statehood than the Democratic Party’s, going back to at least Ronald Reagan’s day.
I’m much more skeptical about DC and, certainly, Guam and the smaller territories. In the case of DC, aside from the partisan angle, it’s just too small. And the non-PR territories are simply teeny tiny—with 100,000 or fewer residents. Adding them as individual states simply makes no sense under the current construct.
We’ve beaten court-packing to death but I continue to believe it would be perceived as illegitimate. Nine justices has been sacrosanct for the entirety of the modern history of the Republican. Overriding it for partisan advantage simply because Donald Trump got to appoint Justices despite losing the popular vote is hard to justify.
As with the previous examples, however, there’s a caveat. Again, I don’t see Trump’s presidency as illegitimate on the basis of his having received fewer votes. While Russian interference adds an asterisk I still don’t have a problem with his appointing Justices per se.
Alas, the Merrick Garland gambit is troublesome. It was legal but at least pushed the boundaries of normative legitimacy. While I would have likely supported a refusal to vote for an Obama successor to the most conservative Justice on the Court had Antonin Scalia died in August or September of an election year, it struck me as naked partisanship doing so when he died in February or a successor was named in March—nearly nine months before the election.
Now that the shoe is on the other foot, with the most liberal Justice, Ruth Bader Ginsburg, dying just weeks before the subsequent election, we’re at a crossroads. While I’m more sympathetic to the Republican argument that it’s different given unified government than most OTB readers, it’s obviously stunningly hypocritical. Half the country would almost surely see a third Trump Justice being confirmed under the circumstances as illegitimate. That would especially be the case if he did so during the lame duck session having lost the election.
Under that circumstance, I think adding two seats to the Supreme Court to essentially reverse the Garland power grab could be sold as a legitimate corrective. Still, a huge chunk of the country would doubtless see it as a giant escalation that broke a hard and fast rule of the game.
Further, doing all of the above—packing the courts, expanding the House, adding Democratic-leaning states—essentially in one fell swoop as a result of winning a single election cycle would almost surely be seen as a declaration of war on Red America.
And, yes, I understand that a lot of commenters think it’s about time. That Red America long ago declared war on them. While I understand that view, I think it’s wrong. Or, at least, wrongheaded.
While our system is institutionally skewed towards the interest of the suburbs and rural areas, it’s ultimately still dominated by the urban centers. Not just because more people live there and they outvote the rest but because they have most of the money and dominate the media, universities, and other purveyors of ideas and culture. Even with the Senate, Electoral College, and Supreme Court over-representing Red America, it merely acts as a regulator. We’re enacting change slightly slower than we would otherwise.
Indeed, I see the Garland gambit as a desperate, last-ditch effort. Even with the institutional advantages, McConnell and company know they have an uphill fight to keep control of the Senate. Republicans already have to draw an inside straight to win the White House and more states are turning Blue every cycle. And even the Supreme Court is issuing massive rebukes to the values of Red America on things like LGBTQ rights, a trend that’s likely to continue.
Ultimately, then, radical power plays to balance the scales will make those in Blue America who are already winning feel slightly better about the system but further inflame those in Red America who see the country they grew up in becoming unrecognizable. It may increase representativeness at the margins and destroy normative legitimacy altogether.
* I have no desire to re-litigate any of these events in the comments section. I’m simply laying out may view of the threats to legitimacy of our system.
A practical aspect of speculation about potentially adding Puerto Rico as the 51st state is that the issue will be an issue on the ballot this November. I have to admit, I did not realize this was the case until yesterday. As Ballotpedia reports:
A “yes” vote supports the position that Puerto Rico should seek statehood.
A “no” vote opposes the position that Puerto Rico should seek statehood.
This is, of course non-binding on Congress, and it cannot compel the admission of PR as a state, but:
Should the ballot measure be approved, the governor would appoint a seven-member commission to represent Puerto Rico in matters and negotiations related to achieving statehood. The commission would develop a transition plan, which the governor would approve or reject, and present the plan to Congress and the President.
According to Senate Bill 1467, which placed the referendum on the ballot, voting “No” on the referendum would mean that a seven-member commission would be appointed to negotiate with the federal government for the free association or independence of Puerto Rico.
A noteworthy difference between the pending vote and these past attempts: voters only have two options this year. The question will be “¿Debe Puerto Rico ser admitido inmediatamente dentro de la Unión como un Estado?” Which is, in English, “Should Puerto Rico be immediately admitted into the Union as a state?”
It is a yes or no question, unlike some previous referenda which had had two-step questions (like in 2012) or multiple options, like in many other years.
It should noted that in 2012, the first question was “Do you agree in maintaining the current political status of the territory?” 53.97% said no and, as per the table above, 66.16% supported statehood.
In 2017, with multiple options, 97.18% supported statehood (but it should be noted that the opposition boycotted that process).
Even going back further, there was plurality support for statehood with four options in 1998 and statehood barely lost in 1993 with three choices.
As such, it seems likely that there is majority support for statehood and at a time when it is at least possible that there will be Congressional support as well. Granted, a number of pieces of the puzzle have to fall into place, such as the Democrats winning the Senate.
In general, I am of the view that it is likely that the aftermath of Hurricane Maria will have enhanced Puerto Ricans’ interest in statehood. After all, they had a front row seat to what it looks like when the island needs the federal government, but no one in the federal government is electorally accountable to the over three million US citizens on the island.
I started this as a comment to James Joyner’s thoughtful post this morning that is forming a bit of a back and forth between the two us over the question of whether the Supreme Court ought to be expanded or not should the Democrats win both the White House and Senate in the 2020 elections.
I appreciate where James is coming from and we agree on quite a bit about the country’s institutional ills. I agree, very much, that the US House of Representatives should be expanded, and perhaps that will happen, although I see no movement in that direction at the moment in our politics.
I have come to the reluctant position of adding states, even DC, and expanding the Supreme Court because they are things that are doable constitutionally and for which there appears to be at least some political will to attempt (although, to be honest, I expect that there may be more sound and fury on these topics than there is actual willingness to act).
As I outlined yesterday, and as I constantly write about, it is my assessment that we have a profound and growing problem of basic representativeness in our national government that we lack the willingness (often even the understanding) to fix. Worse, the party that is currently benefiting from the deficit of representativeness is willing to continue to manipulate the system to its advantage.
Which, by the way, is what we should expect. Actors who benefit from a system are not likely to want to reform that system. Worse, they are often willing to try and further make that system serve their interests for as long as they possibly can. Since the Republicans have an incentive to continue to exploit lack of representativeness in the system, Democrats need to find ways to expand it. Hence, my views on the topic at hand.
I do want to be clear: my ultimate goal in increased representativeness in our government. It is not a specific policy outcome nor is it power for a specific party.
I think the crux of the basic disagreement between James and myself over adding members to the Court is here:
With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady. Trump’s replacing Ginsburg, too, would be perfectly normal aside from the precedent that held open the seat that went to Gorsuch.
I agree, had Gorsuch been replaced by Obama, I probably would not be in the frame of mind that I am at the moment about expansion. But, I want to be clear that I am not taking this position because I want revenge for Garland or because I am upset that Ginsburg is going to be replaced at the last minute.
To get even more specific: a system that would allow a president elected as Trump was to have the power to appoint one-third of the Court (and to have that one-third in place for potentially thirty years) is highly problematic from a democratic-theory point of view. It is enshrining minority power for decades.
What has driven me to this position is taking a step back and looking at the absurdity of the highest court in the land being populated by presidents coming to office without majority support appointing Justices who are confirmed by a Senate that does not represent the population. And throw on top of that the fact that the randomness of death largely dictates when these vacancies occur.
It is, if one steps back and looks at it, a fairly absurd way to distribute power of this significance. It almost Pythonesque watery tarts handing out swords absurd.
A 6-3 majority on the US Supreme Court with five Justices directly linked to popular vote/electoral vote inversions is a direct manifestation of that absurdity. This is almost certainly a durable five-seat majority for at least another decade, and with the Trump appointees potentially for three. All in an institution with profound power.
I would gladly redesign the whole system, but redesign is not in the cards. The options become, then, do nothing to a clearly flawed system (at least if one cares at all about the fact that it is a manifestation of minority rule) or expand the Court.
So, I have come to the point of supporting expansion.
I am open to other suggestions, to be sure. I am even willing to have my mind changed on this subject.
Still, I found myself moving this direction in the last couple of months (along with adding states) because of the broad problems that James notes in his post and that I write about constantly. I am at the point of trying to figure out how to enhance some level of increased representation by whatever legal and politically achievable means exist.
Adopting multimember districts and using ranked-choice voting to elect Congress.
If I had to choose only one, it would probably be number one, expanding the House. Number four, serious electoral reform, would be huge (although it would be better with an expanded House) but it strikes me as unlikely. Numbers two and three are the only ones that anyone seems willing to even attempt, so I have settled on them.
If I had my way we would utterly reform the Court, use staggered, fixed single terms. I think the Court is too small, so would also expand it. We need regularity in this process, not making decisions about decades of power because of when someone happens to die.
Alas, that isn’t going to happen.
However, the main point of this post: my interest in Court expansion is not about Garland or Ginsburg, per se (or even about McConnell and Trump). It about the broader problems with the Court and our whole constitutional order and one of the only ways I can figure out to address them at all.
For a long time, I was of the view that it was best to try and educate about the flaws in the system and to talk about fairly dramatic reforms. I will still do so, but have become persuaded that stopgap, achievable change is also necessary, even if it is a bit dramatic on its face. Also, the only way to even start to get the side that is favored by the status quo to talk about change is to show a willingness to make unorthodox moves if those are all that are available.
The weekend’s back-and-forth between Steven Taylor, myself, and the commentariat over court packing spurred by the death of Justice Ruth Bader Ginsburg has been illuminating. I don’t think many minds have been changed but it seems clear to me that there’s basic agreement that America’s system of government is highly unrepresentative and that our institutions, compounded by naked partisanship, are failing us. The disagreement is comparatively small: how big is the emergency and what remedies are justified in dealing with it?
But there was also an unspoken issue looming in the background until Michael Reynolds called it out: the very existence of states themselves and the related division of power that our system was built around.
He begins with a more colorful version of an observation I’ve made many times:
This is a 233 year-old document. It’s not the fault of the Framers – you try and design a durable system of government for the year 2253. You know, 233 years from now, roughly the time of Kirk, Spock, Bones, Klingons and Romulans.
It is absurd on its face that a set of rules designed for slave-owning tobacco farmers and tea importers in an era when people regularly died of disturbances of the bodily humours would work for a 330 million person, 50 state, coast-to-coast economic, military and cultural superpower.
While I very much admire the genius of the Framers, they were at their core politicians dealing the issues of the day. They were sent to Philadelphia to address the crises surrounding the arrangments under the Articles of Confederation, made a series of compromises to get sufficient buy-in to among the delegates present, and then ret-conned philosophical justifications for said compromises in the Federalist Papers to secure ratification.
At the core of the agreement was that it was among 13 sovereign states—literally, individual countries—who came together under a confederation to secure independence from the British Empire and then cobbled together a federal union that delegated just a handful of powers to a weak central state.
The illustration atop the document represents the schoolboy version of the arrangement. The graphic below represents a Political Science 101 view:
Alas, westward expansion quickly shifted this reality. The nation quickly grew in size and scope. We went, in relatively short order, from 13 states with four million total population living across the Eastern Seaboard to a continental power of 330 million spread from sea to shining sea and beyond. And only a handful of the later-admitted states had any pre-existing rationale for existence, much less any sense of sovereignty.
Additionally, as Steven has noted many times, while the Framers may have been geniuses, they were rather dumb about one rather obvious issue: political parties. The electoral system they designed for choosing the President failed the minute George Washington refused to be anointed unanimously to another term. And, rather quickly, partisanship changed the nature of checks and balances among the elected branches of government but also between states and the central government.
Within living memory of the Constitution, then, we were admitting states to the union not based on the preferences and interests of the people living there—in most cases, there weren’t that many of them—but on what political party they were likely to align with. By the 1830s, it became customary to add states two-by-two, such that the partisan balance in Congress was maintained. We did this right through the last two, in 1959, when we added Republican Alaska and Democratic Hawaii.*
Which brings us back to Reynolds:
The essential intractable problem is states. They make no goddamn sense, they mean nothing, they are random lines drawn on a map a century or two centuries ago. Because of states we have a non-representative national government, a government that can be hamstrung by the least successful states and the most backward populations. And we can’t do anything to fix the situation because: states. Just beautiful.
Now, I tend to agree with my co-blogger, Steven, that the problem isn’t states per se but rather the weird way in which they’re represented. Most notably, in the increasing disparity caused by each state getting two Senators and the related inequity in the Electoral College.
So, for example, Steven has proposed adding DC and Puerto Rico as states and KingDaddy and many commenters want to admit Guam, American Samoa, the U.S. Virgin Islands, and Northern Mariana Island as states either to balance out the Republican-leaning inequities caused by the system, basic democratic values, or both. And I oppose it because adding more tiny states (only PR is anything close to a median state population-wise) further distorts the system.
But while the representation issue compounds the problem, it’s not the whole of it. While I’m sympathetic to the view of R. Dave and others that the states serve as something of a proxy for regional interests, Steven is right that it’s actually more complicated than that:
The real divide is rural-urban. Atlanta residents, on balance, have more in common with Philadelphia ones in terms of governance needs and likewise rural Pennsylvanians and rural Georgians.
We allow ourselves to get lulled into simplistic thinking with Red states and Blue states or even simplistic regionalism.
We’re in agreement on that. “States” are rather weird entities. Unlike the nation, they have no control over their borders. Any citizen or Green Card holder can settle in any state they choose and the character of them can therefore change rather significantly over time.
I moved nearly two decades ago to the DC exurbs of Northern Virginia. We’ve become the center of gravity of the state, both in terms of population and economics. But most of us don’t think of ourselves as “Virginians” and, more importantly, most Virginians see us as carpetbaggers and resent our presence. We’ve turned a solid Red State into a fuzzy Blue one, even though the overwhelming preference of the state on a geographic, county-by-county basis is still rock-solid Republican. The same thing is happening in North Carolina and, to a lesser extent, Florida.
Still, I wonder how much of the commentariat agrees with the next bit of Steven’s comment:
The bottom line is that government should represent people, not real estate. Local governance issues and variations should be handled by local government.
I think most of the commentariat here—and, indeed, probably most of the country—don’t really support federalism at all. While conservatives tend to pay more lip service to the idea of local rule and “states’ rights,” it’s mostly because they realize they’re outnumbered.
But, for example, so much of the bitterness and norm-breaking that has surrounded the Supreme Court battles over the last half-century or more is precisely a function of public policy being nationalized. Democrats live in fear that another conservative Justice means Roe vs Wade would be overturned and the right to abortion would go away. In reality, little would change—most states would allow abortions and a handful of states would continue to make it practically impossible to get one. Conservatives, rightly, feared that a liberal court would impose gay marriage, transgender rights, and the like. Conversely, they would prefer to impose their preferences on these issues on the nation as a whole if they could.
While all of that was traditionally the province of the states, we no longer seem content to allow each to go their own way on matters not addressed in the Constitution. Indeed, of the “State Government Powers” depicted in blue on the Venn diagram atop the post, only Ratify Amendments to the US Constitution remains wholly under their purview; the “marble cake” has touched all the rest.
Given the modern economy, that’s understandable. True separation of powers would be unworkable. A gay businessman legally married in Maryland shouldn’t have to fear that his husband won’t be able to come to the hospital and make medical decisions if he has an accident in Virginia.
We still allocate power at the national level as if the 50 states were little countries with sovereign interests. But, in reality, that’s not the case anymore and is becoming less so with each passing decade.
*The notable exception was the handful of states added during the Civil War and Reconstruction by the Republican-dominated northern states. Ironically, they have mostly remained in the Republican column even though it long since flipped from being the liberal party to the conservative one.
The passing of liberal stalwart Ruth Bader Ginsburg and the prospect that President Trump will replace her with a conservative naturally has Democrats panicked and Republicans giddy. The fact Trump won despite a deficit of nearly three million and has already appointed two Justices—including one that rightly should have gone to his Democratic predecessor—adds to the sense of outrage and has sparked talk of “packing” the Court by expanding it beyond the customary nine members. While understandable, this would permanently end the legitimacy of the judiciary and undermine the delicate balance that has held the nation together.
My longtime friend and colleague Steven Taylor, who shares my general instincts on these matters, defends expanding the Court as a necessary evil—a regrettably necessary further breaking of norms in order to correct the injustice of a deeply unrepresentative system that can’t reasonably be fixed through more normal processes.
We largely agree on the problem. While I’m perhaps a bit more sanguine about having geography (“states”) factor into representation in a diverse, federal Republic, repeatedly having the most powerful figure in our system chosen by a minority of the voters is deeply troublesome. That this person then gets to choose the judiciary—with the consent of the legislative body also representing a minority of the population—compounds the problem.
We also agree that “that’s what the Framers wanted” is no longer an acceptable answer. First, because it’s simply untrue. We haven’t elected Presidents or Senators according to the original design in a long long time. Second, because the Framers simply couldn’t possibly have foreseen our modern circumstances in 1787.
Further, we agree doing much about any of this is essentially impossible. The Framers, for understandable reasons given the nature of the Confederation as it stood, made it incredibly difficult to amend the Constitution. Indeed, there have a mere 27 Amendments in the 231 years since ratification and that vastly overstates how often there has been real change.*
Like Steven, I would support a rather significant expansion of the size of the House of Representatives. This would be fully in the spirit of the Constitution and, arguably, is actually required by the Constitution. In addition to making the People’s House more representative, it would at least help tweak the Electoral College’s imbalance.
I’m also amenable to systemic fixes to the Supreme Court, such as proposals to allow the appointment of two and only two Justices per Presidential term. So long as that were done prospectively—taking place after the expiration of the current Presidential term—it would help address some of the inequities of the system and also alleviate the angst about octogenarian Justices and the unseemly practice of attempting to hang on until a President of the right party is in office to retire.
So, why not simply agree to “packing” the Court by adding, say, five Democratic Justices? After all, as Steven notes, most of the current Justices were picked by Presidents who didn’t enjoy plurality support. Because it breaks the system.
My preference would be for the Supreme Court to have a much smaller role than it has had in recent generations in shaping public policy. Issues like abortion, gay rights, transgender rights, and the like should be settled through the political process by the elected representatives of the people. But, alas, not only has that ship sailed but, as already noted, the system is inherently less-than-representative.**
Because it has taken on such a huge role, the Court has been a lightning rod for a long, long time. “Impeach Earl Warren” was a popular slogan in the South long before I was born. But, by and large, the Court has been perceived as legitimate by the people and obeyed by policymakers because of that. Even Richard Nixon and Donald Trump complied with their decisions.
Further, despite the above-noted flaws in our system, the Court has by-and-large been organic, slowly responding to the election returns. Here are the nine Justices from the most recent term, including the dear, departed Justice Ginsburg:
Ruth Bader Ginsburg
There has been a steady ebb and flow. All of the Reagan Justices have died or retired and only one appointee of GHW Bush remains on the Court—and he was born 15 years after Ginsburg. Ginsburg was not only the oldest Justice on the Court she was the longest-tenured Democrat and the second longest-tenured overall. Breyer is widely presumed to be the next to retire, with the assumption that he’s holding out for a Democratic President to appoint his replacement. The remaining Justices, appointed over the last fifteen years, are expected to remain on the Court for years to come.
With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady. Trump’s replacing Ginsburg, too, would be perfectly normal aside from the precedent that held open the seat that went to Gorsuch.
Otherwise, the fact that it is Trump per se appointing multiple Justices is not illegitimate to me, any more than Jimmy Carter’s not getting a single appointment was. He’s the duly elected President and he had every right to appoint Justices to fill vacancies that arose.
Adding four, five, or however many Justices necessary to turn the Court into a rubber stamp for Democratic policies, however, turns the system on its head. Yes, it would be perfectly Constitutional. But it turns what has forever been a steady, organic process into a farce.
*Eleven of the 27 (1-10, 27) were proposed by the first Congress as part of the Bill of Rights that was promised during the negotiations of ratification. Three (13-15) were a direct consequence of the Civil War. Two others (18 and 21) established and ended Prohibition. That leaves only 11, many of which were the equivalent of software updates to fix bugs.
**To be sure, there’s an argument for devolving many of these issues to the states rather than federalizing them. While that was the default position of our system for most of its existence, our modern society is simply much too interconnected for that to work on many issues.
As noted, the politics of Justice Ginsburg’s death are profound and dramatic. It is impossible not to think both about long-term implications, but also the fact that we are less than two months from Election Day. What effect could her passing have on the election?
While the immediate reaction of many has seemed to be that this advantages the Republicans in some way, I am not so sure (although to be honest, I am not sure that it will make a profound amount of difference in either direction).
The reality is that the election of consequence remains 2016, not 2020.
In terms of electoral advantage, it is to the Republicans’ advantage to leverage the results of 2016 to get another SCOTUS seat than it is to say “re-elect us, and then you’ll get the seat.” Why do that? This is classic bird-in-the-hand logic. This is especially true since the polling is all in Biden’s favor and even the odds are slightly in favor of the Democrats winning the Senate.
Under what political calculus should the Republicans wait?
The only reason to wait would be if they thought it substantially increased their chances of retaining the White House and Senate. At the moment, I do not see how that would be the case. Indeed, as we discussed the other day, the basic attitude of the US population to Trump has been remarkably stable. Why should this event be any different than the myriad of other dramatic events over the past four years that had not major effect on his approval?
What currently committed Biden voter is moving to Trump because of this?
What currently undecided voters becomes decided because of this?
Quite honestly, if there is an electoral effect, I think it will be motivating the anti-Trump vote in a way that was reflective in the high turnout in 2018.
The only electoral hay that the Trump campaign may be able to make here is using the threat of expanding the Court to try and motivate his base (but his whole campaign is based on motivating the base, so how new would this really be?).
Given that nothing (not impeachment, not a pandemic, not huge job losses, etc.) has moved the meter dramatically, I don’t see how this does, either.
But if Democrats needed another reason to get out and vote, here it is (but they are already pretty motivated).
Like the sub-title says, a bit of a hot take, so we shall see.
The unfortunate death of Justice Ginsburg raises tensions in what has already been one of the most politically tense eras in the last half-century. Her death in this context, unfortunately, leads minds (mine included) to contemplate the political implications, both short and long term, more than reflecting on her life, career, and contributions.
In terms of the basic politics, James Joyner is correct: unified government (unlike after Scalia’s death) means that there are no constitutional barriers to stop the Republican Preisdent from sending a nomination to the Republican-controlled Senate, who will then almost certainly confirm that nominee.
The only clear potential barriers would be two Republicans on the Judiciary Committee voting with the Democrats to block nominees from leaving committee or, more directly, four Republican Senators saying that they would not vote for any confirmation (Murkowski of Alaska has already said so, but I am not sure where the other three come from).
And let’s face facts: yes, this makes McConnell look like one of the biggest hypocrites of all time, and the rest of GOP with him. But they will all gladly suffer the slings and arrows of being called hypocrite by their enemies in exchange for a Supreme Court seat.
Temporary excoriation (and even being more permanently scarred in the history books) is a small price to pay for a lifetime appointment to the Court and, therefore, multiple decades of influencing constitutional law in the United States.
So that gets me to this from James’ post:
The related question, then, is of packing the Court. I’m four-square against it but could be persuaded that adding a single Justice to undo a lame duck appointment was reasonable.
With the exception of a three-year period from 1863-1866, the Supreme Court has been at nine Justices since 1837—nearly two centuries. Even the incredibly popular Franklin Roosevelt generated enormous backlash when he proposed packing the court with younger Justices after growing frustrated at seeing his New Deal policies ruled unconstitutional. That was nearly a century ago. Nine is sacrosanct.
There was a time where I would have agreed (if anything on practical grounds). Even within the last year I probably still felt that way, but as I noted in a post just last month (Reforms: the Possible, the Improbable, and the Unpossible) there are a limited number of real options when it comes to addressing some very significant flaws in our system, and increasing the size of the Court is one of them.
Let’s considers some basic numbers, ones that are not new to my writings.
Five presidential terms
Three terms for Republicans (Bush x2, Trump)
Two terms for Democrats (Obama x2)
One popular vote win by Republicans (2004)
Four popular vote wins by Democrats (2000, 2008, 2012, 2016)
Four Supreme Court Justices appointed by presidents who initially came to office* after having lost the popular vote (Roberts, Alito, Gorsuch, Kavanaugh)
And, of course, that last category appears highly likely to about to become five. Morever, that would mean three members of the Court (fully a third) would have been appointed for life by a president who lost the popular vote by almost three million and whose approval rating has been under 50% for his entire presidency, save a few days at the very beginning of his term.
In addition to the flawed process we elect the president, there is also the fact that Senate, which holds the keys to confirmation, and the nature of life appointments to the court are part of the problem.
I want the solution to be: go vote! Let the myriad voices of America come together via fair competition so that we, the collective people, directly influence government. Majority rule with minority rights is supposed to be the basic notion of representative democracy.
Instead, we have here, again, minority rule. The minority picked Trump. The minority controls the Senate. And the confluence of structures that empower the minority over the majority already have been able to seat four Justices, and is about to seat a fifth (and to overall bring their majority on the Court to six).
And yes, lest anyone is tempted to tell me, these outcomes are direct consequences of the constitutional rules under which we operate. I understand the rules, their origins, and their functioning all too well. But that doesn’t make these outcomes good, just, appropriate, or even defensible if one values representative democracy.
I would note, that the constitutional mechanism designed by the Framers did not envision westward expansion as it ultimately occurred. Just look at the geographic size of the 37 states added over time, and compare them to the first 13. And think about how large, largely peopleless (in a relative sense) states like Wyoming, Idaho, and the Dakotas distorts the EC and the Senate (institutions that already distort majority influence). And, on the other end of the spectrum, how vast, highly populated, states like California and Texas also distort the original design.
If anyone is tempted to “republic, not a democracy” this situation, please at least acknowledge that what you are defending is minority rule and you are defending it because the minority to which you belong is the one that is benefitting.
And please, don’t pretend like the United States is a shining city on a hill or a model for the world.
This all gets me back to expanding the size of the Supreme Court (which I prefer to the term “court packing”). Anyone who has read my writings here knows my preference for having a popular vote for the presidency and various other, deeper, reforms to the way we elect Congress, and even substantial restructuring of the Senate. I am certainly cognizant of the difficulties (near impossibilities?) of these reforms, especially in the short term. And while I will continue to try to educate anyone who will listen concerning these options, the increased erosion of the basic representativeness of our system means that practical solutions are also needed.
A system that allows the party that cannot muster majority support to nonetheless frequently control one half of the legislature, win the executive with minority support at a rate that has outpaced the ability of the other party to win it with majority support, and to therefore be able to dominate the constitutional court for the next several decades is a highly problematic system.
It is an unrepresentative system.
It is an unjust system.
And it is a system that will lead to protests and even breakdown at some point. (I honestly think that at least part of what is driving some of the current protests are feelings of not being represented, even if the protestors don’t understand why–and we don’t correct this problem, it will get worse).
As such, I have come around to the notion that if the Democrats can control the White House and the Congress starting in 2021 that they should add states and they should increase the size of the Court. I do not reach that conclusion lightly, nor am I especially thrilled at having reached it.
I would note that there are both constitutionally allowed actions. They break norms (the last time we added states we did so with partisan balance in mind, and James is right that nine Justices has been the norm for most of the history of the republic).
I would prefer that the norm-breaking end. But since that does not appear to be likely, I am willing to support norm-breaking that is both constitutional and that would have at least some ability to address the representational imbalances in the system.
Adding Justices would counter-balance five Justices appointed by Presdidents who came to the White House without majorirty support.
Adding states would make the Senate, and the Electoral College, slighgtly more representative.
It is also why I support increasing the size of the House.
If we cannot get a new system, and I aware of the dangers of even trying, then we need to do our best to make the current structure as representative as we can.
*Bush did not get any appointees in his first term.