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Partisan Asymmetry And the Courts


Michael Berube’s new article for Democracy is so good and so rich there are multiple discrete posts to be made about it, which is what I will do. One of the pleasures of it is that he actually read Mark Lilla’s book-length version of late-period liberal contrarianism, which is even worse than I imagined, but also bad in ways that are instructive. This is a really crucial point:

But blaming that on “identity politics,” as Lilla does, doesn’t make a fraction of a lick of sense. Take this bit, for instance: “[I]f identity liberals were thinking politically, not pseudo-politically, they would concentrate on turning that around at the local level, not on organizing yet another March on Washington or preparing yet another federal court brief.” I can take or leave some marches, sure, but you’re writing a book in the early days of the Trump Administration and you decide to piss on the women’s marches that constituted the first mass public show of resistance to the guy? More important, what’s this about “preparing another federal court brief”? Only someone with no understanding of American politics, someone even less literate about the separation of powers than Glenn Greenwald, would be so cavalierly dismissive of the judicial system.

Conservatives never make this mistake. Never. They run buffoons, jokers, miscreants, ignoramuses, jackasses, sexual predators, and every variety of incompetent for elective office, but when it comes to the judiciary, they are deadly serious. They know the federal bench is not a place for their buffoons—it is reserved for their evil geniuses. Just think of the massive freak-out on the right when Bush floated the idea of appointing Harriet Myers to the Supreme Court in place of one of the Scalian androids the Federalist Society had been grooming for years. Please. Tell me again, after National Federation of Independent Business v. Sebelius, after Shelby County v. Holder, after Citizens United v. Federal Election Commission, how preparing federal court briefs is a distraction and a waste of time.

ILLE: I . . . I don’t think it’s unreasonable to think of the courts with ambivalence. Yes, liberals won some landmark victories, but at what cost?

HIC: At what cost? Seriously, look at this: “Most foolishly, liberals grew increasingly reliant on the courts to circumvent the legislative process when it failed to deliver what they wanted (and I wanted too). . . .  Liberals lost the habit of taking the temperature of public opinion, building consensus, and taking small steps.” You know where this nonsense comes from? It comes straight from the keyboard of David Brooks. April 2005: “Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it. When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate. . . Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views.”

Just substitute “Warren” and “Brown v. Board” or “Loving v. Virginia” for “Blackmun” and “Roe v. Wade” and you’ll see how mind-numbingly foolish this argument is. Goddammit, more than 80 percent of Americans opposed inter­racial marriage in 1967 when Loving v. Virginia was handed down. Were liberals supposed to defer to public opinion on interracial marriage lest they lose touch with “working-class Americans”?

Lilla’s analysis of politics seems to consist entirely of half-remembered mediocre op-eds from the 90s, and this is particularly evident here. There was, in the immediate wake of the Warren Court, an element of truth to the claim that liberals but too much faith in litigation as opposed to other forms of politics. But in 2018 this lesson has not merely been learned but distinctly over-learned. Obama put too little focus on the federal judiciary, not too much. If Chuck Schumer pulled off what Mitch McConnell did with a vacancy that occurred under a Republican presidency, this would have been a yooge election issue. You can make a case that Clinton could have said more, but I would assume her research was telling her that a Supreme Court vacancy would mobilize conservatives more than liberals and it’s hard to argue that this is wrong.

To look at the 2016 election, to see a Supreme Court seat stolen for Trump, to see Bush v. Gore and Shelby County and Concepcion and Parents Involved etc. etc. etc. and taking the lesson that liberals need to stop caring so much about the courts — it’s fighting the war before the last war. Liberal contrarianism can’t become uninfluential enough.

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