Now that it’s become clear that we’ve failed to stop Brett Kavanaugh, a fascinating debate is brewing about what the American left’s position ought to be with respect to the Supreme Court going forward. There are two big, radical proposals vying for people’s attention and support:
I want to discuss the merits and demerits of both approaches and propose a long-term strategy that I think will be more effective than immediately picking up and running with either.
The British have a visceral hatred for Donald Trump. It’s not because of his positions on immigration or tax policy–there are plenty of European politicians who are at least as far right as Trump is, substantively. No, it’s because of the way Trump presents himself. He’s combative, he gets angry, he makes flippant, emotional remarks. When British politicians show emotion it exposes them as weak, out of control, and unstable. If a British politician shouts or cries in public–especially in a formal setting–it’s embarrassing. It’s not proper behaviour. Everyone in Britain knows, from an early age, that this is just not how politicians are supposed to behave. They like their leaders calm, stoic, controlled. This is less true than it used to be–for a time, Tony Blair got away with wearing his heart on his sleeve. But there were always those who made fun of it, who thought it “un-British”. Whenever a British politician makes an emotional display and gets away with it, there is a chunk of British people who write nervous columns about creeping Americanisation. Having spent some years in the UK, I can spot the kind of American politics they hate a mile off. And it has never been so blatant, so in-your-face, as this senate hearing for Brett Kavanaugh.
Remember when Antonin Scalia died and Barack Obama tried to replace him? I remember because on that occasion I wrote one of the most mistaken pieces I’ve ever published on this site: “How Obama Can Replace Scalia“. In that piece, I argued that because previous Supreme Court justices had been replaced in time periods much shorter than the remainder of Obama’s term, Obama would surely also be able to replace Scalia before leaving office. After all, if Republicans attempted to block him for almost a full year, the public would be furious with them for playing politics with the court, and would play a price at the 2016 election. I even had a nice chart:
I was completely wrong about this because I underestimated the degree to which the Supreme Court has become transparently political, even in the eyes of ordinary Americans. Our political parties hardly even have to excuse politicising the court (though they try to do so anyway). We all know that some of the justices are conservative and some are liberal, even if they couch their political ideology behind legal theories like “originalism” and “textualism”. We recognise that there is no such thing as an apolitical judge, that when judges claim to be politically neutral they are being disingenuous. So we now treat Supreme Court nominations like any other political issue and fight tooth and nail to ensure that the next judge is someone we can ideologically live with. And we may have to live with their ideology a long time–between presidents picking younger judges and judges living longer, the average bench time for a Supreme Court justice has quietly increased by around a decade. Having learnt from my mistakes, I now look at the fight to replace Anthony Kennedy quite differently.
Today the Supreme Court voted, 5-4, to enable public sector workers to unilaterally withhold contributions from their unions. Justices Roberts, Alito, Gorsuch, Thomas, and Kennedy were in the majority, with Kagan, Ginsberg, Sotomayor, and Breyer in dissent. The principle guiding the majority’s decision is simple and intuitively appealing. When workers pay unions dues, those unions use that money to fund political speech. Individual workers may not agree with the union’s speech acts, and therefore compelling them to pay dues ties their employment to their willingness to espouse a particular kind of political speech with their wallets. The court argues that requiring workers to make certain kinds of political speech acts with their wallets to retain employment violates their free speech rights. The argument is internally valid–it makes sense, given a particular conception of individual freedom. The trouble is that this conception of individual freedom is destabilising the labour market in a politically dangerous way, and in consistently choosing to interpret this principle in this way the court is threatening the legitimacy of the state.