Toward a Less Stupid Supreme Court Discourse

Let's cut the bullshit here, please.

Dear readers,

As I watch the vexillogic investigation into Justice Samuel Alito unfold, I keep thinking of Brett Kavanaugh’s confirmation hearings — specifically, the forensic examination of his high school yearbook. In case you’ve blocked it out of your mind, one thing that happened in the Kavanaugh hearings was that the Senate Judiciary Committee faced a question they had zero hope¹ of ever determining an answer to — what had happened at an alleged gathering of Georgetown Prep high school football players over three decades earlier? — and so committee Democrats turned to exegesis of Kavanaugh’s high school yearbook entry. They seemed to believe that, if only they investigated the inscrutable and juvenile text hard enough, the truth about whether he had sexually assaulted Christine Blasey Ford would reveal itself.

“I don’t believe ‘boof’ is flatulence,” averred Rhode Island Sen. Sheldon Whitehouse, in his explanation of why he would be opposing Kavanaugh’s nomination. Then, as now, my question was: What are we really doing here?

At this point, you’ve probably heard about the controversy over the upside-down American flag that flew outside Alito’s Virginia home and the “Appeal to Heaven” flag that was seen at his beach house, and whether these flags constitute coded messages that render it impossible for him to be seen as impartial in court cases relating to the January 6 riot. Justice Alito says the flags aren’t his — they belong to his wife, Martha-Ann. “My wife is fond of flying flags,” he wrote in a letter to the Senate Judiciary Committee. “I am not.” He even says he asked her to take down the upside-down American flag that she flew outside their Virginia home shortly after the Capitol riot, and she refused — her right as a co-owner of the property, he notes. Furthermore, he says her reasons for flying the flags had nothing to do with January 6.

Is that all true? Maybe. Similarly, did the mention of “Devil’s Triangle” in Kavanaugh’s yearbook refer to a drinking game? “I don’t believe Devil’s Triangle is a drinking game,” Whitehouse declared back in 2018. But I’m not so sure. How would any of us prove otherwise?

Is any of this important? Or can we just talk about what we’re actually talking about when we talk about conservative justices on the Supreme Court? All these fights are really about how the court should rule, and I think we could have smarter conversations if we stuck to arguments that were actually about the rulings, and about what political actors could do to get the court to make different kinds of rulings.

The core fact about the fight over the Supreme Court is that conservatives won it by winning well-timed elections. The outcome of any hearing to replace Anthony Kennedy on the court was preordained when Republicans won the presidency and retained control of the Senate in 2016; their ability to replace Ruth Bader Ginsburg with a conservative was sealed when they held onto the Senate in 2018. Yes, Democrats’ scorched-earth campaign against Kavanaugh might have kept Kavanaugh, personally, off the court. But if he had been forced to withdraw, Trump would have nominated Amy Coney Barrett and the Republican-controlled Senate would have confirmed her. Then, when Ruth Bader Ginsburg died in 2020, some other conservative judge would have joined Barrett on the court. So even if Democrats had “won” the fight over Kavanaugh, they would not have won anything at all in terms of legal outcomes.

Democrats’ loss in the very consequential fight over the court has led to quite a bit of grief and garment-rending. This isn’t necessarily a bad thing — grief could focus and motivate a political coalition to win. But the manifestations of the grief have often been more cathartic than strategic — including these trips down thing-adjacent rabbit holes about yearbooks and flags, where some liberals seem to mistakenly believe a key to control of the court lies. If Democrats want to change the Supreme Court and make it less conservative, they need to channel their grief and outrage into four objectives, on which they have often seemed less than laser-focused.

An abortion rights activist flew an upside down flag, the international sign of distress, outside of the US Supreme Court during a protest in Washington, DC, on June 26, 2022, two days after the US Supreme Court scrapped constitutional protections for the procedure by issuing its decision in the Dobbs v. Jackson Women’s Health Organization case. The majority opinion in Dobbs was authored by Justice Samuel Alito. (Photo by Samuel Corum / AFP)

The first is that they need to try to win back court seats. Unfortunately, the only way to do this is to hold the presidency and the Senate when a conservative justice dies. This makes it important to win as many elections as possible, so Democrats should do things like running more moderate Senate candidates in red states (instead of showering generic Democrats like Jaime Harrison with campaign donations so they can lose by 10 points to Lindsey Graham) and taking more popular positions in presidential elections (for example, Biden should never have endorsed policies that raise gasoline prices, like banning oil drilling on public lands). The upcoming election is particularly important here: if Trump wins, it’s likely that Alito and Clarence Thomas will take the opportunity to retire and be replaced by younger conservative judges, making it much less likely that any conservative justice will die in office anytime soon.

The second is Democrats need to hold on to the three seats they already have — liberal judges should not stay on the court so long that they risk death under Republican presidents, like “Notorious R.B.G.” did. As I’ve written, this is why liberals should be pressing Sonia Sotomayor to retire now, while it’s still possible to replace her with a young liberal judge; she will be 70 on Election Day, and if she doesn’t retire this year, the next opportunity unfortunately may not present itself for a decade or more. Sotomayor is a lot more likely to be responsive to pressure from liberals than Thomas or Alito — she shares the policy goals of liberal activists and so may actually care about their views and preferences. Unfortunately, pressuring her is much less emotionally satisfying than complaining about the conservative justices, so liberals don’t focus on her nearly as much as they should.

The third is that Democrats need to put political pressure on the court. To the extent that the justices fear being unpopular, or fear that public disapproval could foment support for court-packing, they may be pushed to be less aggressively conservative in their policymaking. I do think some of the efforts in this vein — notably, the push for coverage of Clarence Thomas’s financial dealings — have been effective in shaping public views of the court in a way that is helpful to liberals. And in theory, stories like Flag-gate are supposed to serve this objective. But the problem is that the hits can backfire if they look unfair, trivial, or hysterical, as this one increasingly does. Did you know that the “Appeal to Heaven” flag — a Revolutionary War symbol now allegedly lost to history except when flown as a white supremacist symbol of support for a Trump coup — had been flying in front of San Francisco City Hall until just a few days ago? Again, I don't know why the Alitos flew the flag, but the ambiguity of what flags mean (I doubt “Stop the Steal” is what San Francisco officials had been going for) makes Democrats look a little bit like Charlie Day with his pinboard when they talk about this story. Alito is obviously not going to recuse himself because you complain about him, and if he ends up being involved in a bad ruling that relates to the 2020 election, you’ll be able to make public hay about that, which will be a lot more compelling than arguing about flags.

And the fourth is that Democrats should be prepared to add seats to the court and fill them with liberals when they have the ability to do so. Preparing for this means that the PR campaign to knock the court off its pedestal isn’t just aimed at the justices themselves or at swing voters, but at Democrats — you want to build consensus that the court is so right-wing that court-packing has become justified.

Since I’ve talked about ways that Democrats get precious when they talk about the court, we should also talk about two key areas where it’s Republicans who are precious. One is court-packing and the other — more related than you might expect — is decorum.

When Democrats complain that conservative domination of the court is unfair, Republicans like to point out that rules are rules — our system allows judges to time their retirements strategically, and it allows the Senate to rush nominations or bottle them up, whichever serves the interests of the Senate majority. And that’s true, but it doesn’t mean liberals need to be happy or polite about it. Our system has produced a result that is undemocratic: the court has a political orientation that is far to the right of what would be implied by several decades of election results, and that has resulted in policy outcomes that go against the will of the majority, most notably the imposition of unpopular abortion restrictions across much of the country. With the democratic will thwarted, it should be no surprise that liberals might sometimes be confrontational and rude — for example, there have been protests right outside Alito’s home, and one of his aggrieved liberal neighbors even called his wife a “cunt.”² This sort of direct complaint strikes me as an inevitable result when democratic means of policymaking are withheld, and a small price for conservatives to pay in exchange for the ability to impose unpopular abortion policy.³

As for court-packing, well, I thought the conservative position was that there’s no crying in baseball. If “rules are rules,” then the same set of rules that allows the Senate to refuse to vote on a president’s court nominee also allows the Congress to change the number of seats on the court. So it really would behoove the conservative justices to consider how far they can go with their decisions without consolidating Democrats around the view that they should avail themselves of this rule when they can.

Finally: there’s something funny about Democrats’ demands that Alito should recuse himself on the grounds that he’s too biased. All judges are biased — this is why there’s even a difference between conservative and liberal judges — and in other contexts, Democrats seem to understand that it’s good when the biases of judges are more transparent. In races for state supreme courts, it’s liberal candidates backed by Democrats who have been running on explicit pledges to find rights to abortion and prohibitions on gerrymandering in state constitutions, and conservatives who are arguing that judges have an obligation to conceal their preconceptions and withdraw from cases where they’ve failed to do so. The liberals have this one right — courts are important policymaking bodies, liberals have the more popular side of some of the key political questions before the courts, and so the stakes of who sits on the court should be made as clear as possible to voters; the process should not be obscure, opaque and mystical, as conservatives would have it at the state level.

Indeed, Republicans have had a pretty good rejoinder when discussing Democratic demands for Alito’s recusal from election-related cases — if Alito should recuse because of the implicit message from a flag that might have been his wife’s, shouldn’t Ruth Bader Ginsburg have recused herself from cases about the release of Donald Trump’s taxes after she told CNN she didn’t understand how Trump, a “faker,” had “gotten away with not turning over his tax returns”? Sen. Richard Blumenthal even conceded the point, telling The Dispatch “she probably should have recused herself, too.” Instead, I think Democrats should take the Ginsburg example, and the state court examples, as signs that recusal demands are a cul-de-sac — the problem isn’t that the judges are too openly political; it’s the substantive politics of the people who sit on the court. (Plus, even if you did have a good mechanism to pressure judges to recuse, it’s a lot less likely to do you any good on a 6-3 court rather than a 5-4 one.)

The court is a political body, and Alito will inevitably make political decisions; he will surely ignore any recusal demands from Democrats. The task remaining for Democrats is to demonstrate those political stakes at the court to voters so that they can implement a strategy to gain more influence over how the court rules. That messaging task will involve saying the word “flag” less, and the word “abortion” more.

Very seriously,

Josh

1. For me, one of the most bizarre aspects of the Kavanaugh saga was how many people convinced themselves they could know the truth about Ford’s accusation. People reacted with certainty partly due to partisanship, and partly because it’s very uncomfortable to consider the possibility that a serious accusation might be made against someone with no good way for us to establish whether the accusation is true or false. For years, conservatives have teased the idea that we will soon see an “oppo file” that will destroy Ford’s credibility and vindicate Kavanaugh. Usually the people claiming this don’t even claim to have read the alleged file themselves. Given the intense feelings that linger about the confirmation fight, I’m confident that if the file existed and contained truly compelling information, someone would have shown it to us by now. Meanwhile, liberals sought to bolster Ford’s accusation with pop psychological close-reads of his yearbook, or by asserting that Kavanaugh’s angry defiance was tantamount to an admission (wouldn’t being on the receiving end of a false accusation or a true accusation both be likely to make someone angry?), or with other weak evidence. The New Yorker even ran a whole feature on an additional accusation from Kavanaugh’s Yale contemporary Deborah Ramirez, who, by her own account to New Yorker, had been unsure whether it was Kavanaugh who had assaulted her decades ago, but had become sure through six days of “carefully assessing her memories” in the context of a national media frenzy over Ford’s own accusation. This is not the sort of evidence that would have been sufficient to justify a news article under more normal circumstances. There is a reason we have statutes of limitations — it is simply very hard to figure out what happened far in the past, in large part because people’s memories are highly fallible and degrade with time. These same factors apply in non-judicial settings; we can’t always hope to know the truth about important things, as comforting as it would be to think that we can.

2. Alito says in his letter that a man living in the Baden family home used the epithet, but Emily Baden and an unnamed neighbor have told The New York Times that Baden herself was the one who said it.

3. To hammer it home, one of the aspects of Supreme Court discourse I’m least patient with is fretting over whether the public is extending sufficient respect to the justices, whether that’s Rep. Nydia Velazquez saying Sotomayor should get her seat indefinitely as a lifetime achievement award for being a great Latina, or conservatives fretting about protests near justices’ homes as threats to the republic. The justices work for us, they have extremely desirable and powerful jobs, and we don’t have any responsibility to make them happy.