Benjamin Studebaker

Over the past week, there has been a very strong emotional reaction to the death of Ruth Bader Ginsburg. I am not talking about the grief–it is perfectly normal for Ginsburg’s many admirers to grieve her loss. But it has gone beyond grief. There is a climate of intense fear surrounding Ginsburg’s death. Over the past few months, the Democrats have tried to make the 2020 election feel existential. They want us to feel that we have to vote for Biden, because otherwise democracy itself will be destroyed. This has led to a lot of exaggeration. I have been reluctant to write on it, because the reactions people are having are so extreme. But contrary to the increasingly hysterical narrative, there is little reason to think that Ginsburg’s death will have massive political consequences. Here’s why.

The argument has three main components:

1. The impact of Ginsburg has been dramatically exaggerated
2. The court is not likely to make the judgements people fear
3. The Democrats have a political interest in misleading us about #1 and #2

Let’s take these points in turn.

Ginsburg’s Impact

While Ginsburg had a very remarkable run as a civil rights lawyer before she became a Supreme Court justice, her work on the bench has been much less consequential than her earlier work off it. Ginsburg is known, first and foremost, for her “blistering dissents”. The opinions she writes which are most valued by her admirers are the opinions which don’t succeed in convincing the other justices and which don’t ultimately shape the decisions the court makes.

When Ginsburg is in the majority, she sometimes is in the majority for the wrong reasons. In Integrity Staffing Solutions Inc. v. Busk, Ginsburg voted to deny Amazon workers overtime pay for the 25 minutes they spend every day in mandatory security screenings. In Eldred v. Ashcroft, Ginsburg voted to extend copyright protections, establishing what Justice Breyer called “perpetual copyright”.  She even wrote the majority opinion. After 2005, Ginsburg voted with business interests 47% of the time they were at stake, far more often than the liberal justices of the past, like Earl Warren (25%) or Abe Fortas (19%). As Yale professor Samuel Moyn puts it:

We live in this interesting period where women and men, thanks to Justice Ginsburg, are treated more equally…But she hasn’t shown the same concern for the fact that in the same period rich women became less equal to the rest of women in class terms.

On criminal justice reform, Ginsburg often takes a tough-on-crime position. In Plumhoff v. Rickard, she voted to deny the families of two men killed by police the opportunity to sue the police department. In Samson v. California, she voted with the conservatives against Justices Stevens, Souter, and Breyer to allow the police to conduct warrantless searches of parolees simply because they are on parole. In Davis v. Ayala, Ginsburg declined to join Justice Kennedy in opposing the constitutionality of solitary confinement.

Now, a liberal reader might be thinking that regardless of Ginsburg’s weaknesses, she is still much better than Trump’s replacement. After all, the Roberts court as a whole votes with business a full 70% of the time. I don’t deny that. The court will be worse without Ginsburg. But the difference won’t be as dramatic as advertised. After all, the Roberts court already votes with business 70% of the time. We already have a very conservative court. And then, there’s the question of legitimacy.

The Court Cannot Move Much Further to the Right Without Compromising its Legitimacy

Folks who know the work of Friedrich Hayek often think of him as a market fundamentalist, and Hayek was–but he also called for a lot of state intervention into the economy. Why? Because for Hayek, some level of state intervention is necessary to maintain the legitimacy of the market system. As Hayek put it:

Some security is essential if freedom is to be preserved, because most men are willing to bear the risk which freedom inevitably involves only so long as that risk is not too great.

If the consequences of the market system are too acutely felt, the market system loses political support. Hayek therefore calls for a guaranteed minimum income and a comprehensive system of social insurance. Even for someone like Hayek, defending the market as a distributive procedure requires breaching that procedure from time to time.

Chief Justice John Roberts runs the Supreme Court in very nearly the same way. Wherever Roberts can get away with it, he defends business interests and takes socially conservative positions. But if these rulings would seriously undermine public confidence in the court, he places the court’s political needs ahead of his own legal principles. Increasingly, the court’s legitimacy hangs by the edge of a knife. More and more, liberal and left-wing writers argue that Democrats should pack the court, abolish the court, or reject Marbury v. Madison and deny the court’s power to overturn legislation.

To defuse this, Roberts increasingly votes with the court’s liberal wing when there is a lot of public attention on the court. He voted to defend Obamacare, to stop the Trump administration from asking about citizenship on the census, and to limit the ability of the executive branch to reinterpret regulations. As Chief Justice, Roberts also has considerable influence over the court’s case selection and can push to avoid hearing cases he thinks are likely to go in a damaging direction. He sometimes gets help from other would-be conservative justices, like Trump’s own appointee Neil Gorsuch, who has voted to protect trans rights and sided with defendants on sentencing.

Roberts is attentive to the public mood and can be pressured. Gorsuch isn’t always loyal to the conservative wing on criminal justice. Other conservative justices may begin voting differently if they feel the legitimacy of the court is under threat. By publicly pressuring the court, we can limit its rightward drift. And if the court does make decisions we cannot live with, it is possible to use unconventional institutional reforms. By building a credible threat to attack the court with these institutional reforms, we would make it less likely that the reforms would be needed. The stronger and the more credible the threat, the more likely the court is to back off.

The concern is the obscure cases. Whenever we’re not looking, Roberts pushes to further advantage the rich, and because social issues receive far more public attention than economic issues, the Roberts Court is often free to act with impunity. But when Ginsburg dissented–and she didn’t always–her dissents offered little resistance to these rulings. They came after the fact, when the battle to pressure the court was already lost. We are losing at the judicial level for the same reason we are losing everywhere else–our failure to build a mass movement around core, fundamental economic rights. The loss of Ginsburg underlines the reality that the left has not been able to do much of anything useful with the judiciary in half a century. It is one more defeat in a long series of defeats. What should we expect from a political movement which has put more stock in judges than in persuading ordinary people? Lose enough elections for long enough, and you’ll lose the courts too.

The Democrats Love to Weaponize Their Own Failures

The Democratic Party loves to talk up threats to democracy and to our rights that it is itself creating. It is the Democratic Party which, under President Obama, created the conditions under which millions of Americans were willing to support Donald Trump. My home state of Indiana supported Obama in 2008 by a narrow margin, only to swing further and further right as the Obama administration failed to deliver the promised hope and change. Time and time again, the Democrats run condescending, elitist campaigns which alienate ordinary people and fuel right-wing reaction. In the name of stopping that reaction, they demand we support the very campaigns that are driving it.

The real threat to democracy doesn’t come from the ordinary American who votes for Trump out of disgust with the political elite–it comes from the elite which takes its legitimacy for granted. Over and over, establishment Democrats and establishment Republicans have voted to undermine the economic security of the ordinary person, pushing Americans into an ever-more desperate search for a saviour figure. This is resulting in demands from both parties’ grassroots for concentration of power in the hands of the executive. Often the liberals are inventing new tools for the next set of conservatives. It was the Obama administration which pioneered flooding the courts with dubious executive orders, and today liberal writers fantasise about gutting the judiciary or overturning elections through the impeachment mechanism.

While drastic measures are a useful rhetorical tool for pressuring the court, we must be very careful about taking the electoral rhetoric of the Democratic Party seriously. This party and the elite which it serves have a long history of promising to stop the Republicans only to go onto lose elections to opponents who are even more aggressive than those who came before. For years, the Republicans developed their ability to generate hysteria, accusing even right-wing Democrats of being communists. Now, increasingly, the Democrats have become good at the same tactics, throwing around accusations of fascism and authoritarianism at every Republican they see. We are approaching a world where very little of what is said in public by either side has even a passing connection with reality.

Look at what it’s doing to people. Social media is full to bursting with otherwise reasonable people who believe democracy is collapsing and the Republicans are about to annihilate women’s rights. They’re terrified, and they’re lashing out at ordinary Republican voters and pushing them further and further to the right. It’s not healthy for them, and it’s only making things worse. This kind of fear-mongering by the Democrats should not be rewarded or encouraged. It is not a healthy environment for thinking critically about our values or our strategy.

By all means, let’s mourn Ruth Bader Ginsburg. But then let’s get a grip and carry on.