After a Stolen Supreme Court Seat, What’s a Norms-Lover to Do?
Plus: Is Threads really the ‘Twitter killer’?
Hey, it’s Tim, taking a turn sitting in for Charlie while he is on holiday. You can also catch me in the host chair for The Bulwark Podcast later today with Ben Wittes and tomorrow with Tommy Vietor.
At the start of this week’s Next Level Sunday episode, I offered some thoughts about the affirmative action SCOTUS case. (Aside: If you aren’t listening to our Sunday funday interviews yet, what are you doing with your weekends?! Subscribe!) In the intervening days, we’ve had some compelling pieces in The Bulwark with differing points of view on that case and a round of additional decisions related to the constitutional rights of an anti-gay web designer and the constitutionality of Biden’s obviously supralegal student loan gambit.
So I want to take a minute to put all this Supreme Court talk in context—to give you my holistic view of the current Court, including areas where I differ with the conventional wisdom on both sides of the aisle.
But first: Since I’m sitting in for Charlie, I’d be remiss to not ask you all to consider a FREE 30-day trial of Bulwark+. Nobody has ever deserved a short holiday more than this guy. Dude is pounding out an unfathomable amount of high-quality content every week in this newsletter and on his podcast. So if you are interested in supporting Charlie’s work—and the work of everyone else on the team—give Bulwark+ a try. You’ll get the bonus Charlie + Mona pod, the JVL + Sarah “Secret” pod, and a bunch of other cool stuff.
For those of you already supporting The Bulwark with your membership, THANK YOU. Feel free to share this newsletter with anyone you think might enjoy giving Bulwark+ a try—FREE for the next 30 days. Offer expires Sunday.
How Normal Is This Court, Really: A Meditation From a Conflicted Man
People on the right bristled at a frank comment from President Joe Biden as he exited a press conference last Thursday: “This is not a normal Court,” he said. In their view, this was an example of Biden betraying his promise to be a steward of our norms and institutions and taking an unnecessary swipe at a SCOTUS that has executed constitutionally sound, conservative jurisprudence.
Here’s a version of this position that was posted by an pseudonymous anti-Trump conservative I follow on Twitter:
Supreme Court rules against racial discrimination in college admissions. A position supported by an overwhelming majority of Americans. Biden responds by questioning the normalcy of the court. This is not a normal President.
Preparing for today and tomorrow has been the whole point of the recent campaign to try to undermine the legitimacy of the court majority. They cannot defend their legal positions so instead they do this and we get deafening silence from much of the norms crowd.
I assume we at The Bulwark are part of the “norms” crowd he is referring to, and while I don’t speak for everyone here, my view is that critiques of this Court and discussions of reform are totally legitimate and within the bounds of standard political discourse.
For starters, the size of the Supreme Court has changed several times before; the current number of justices was not set out on stone tablets delivered from on high. Lifetime appointments are written in the Constitution, but they’re opposed by a majority of Americans. Norms-abiding Republican legal luminaries like Don Ayer have expressed openness to adding more justices to the high court.
Personally, I think there would be value in hearing all kinds of different arguments for how we might best redesign the system so that every SCOTUS appointment doesn’t turn into a partisan deathmatch where fundamental rights hang in the balance. To the extent that “normal” people think about this issue at all, I suspect this kind of openmindedness is pretty typical.
These kinds of conversations make even more sense when you put the Democratic agita over the current Court into a fuller context. The reality is the GOP stole a Supreme Court seat. That might sound overwrought, but if you strip away all the talking points and all the bullshit, it becomes clear that in any fair system, either Merrick Garland should have the Gorsuch seat or a Biden appointee should have the Barrett seat. The situations were exactly the same, and the McConnell Senate blocked one appointee while jamming through another. The fact that they did it without even having majority popular support adds to the distrust, as I’ve written about before.
If this were a situation where because of term limits the left could get another shot at one or both seats in 4 or 8 or 12 or, hell, even 20 years that would be one thing. But those were lifetime appointments of young judges. So if you are a conservative who thinks Cocaine Mitch deserves praise for the extreme lengths he went to to take those seats, then you can’t clutch your pearls when the left looks at ways—within the Constitution and the law—to try to balance the playing field.
But despite all the reasons a person who values institutions might sincerely think the Court would benefit from some reforms, there is one prominent institutionalist who disagrees: President Biden!
That’s right. He might have made a little jab about the Court’s normalcy in the wake of a decision he found disappointing. But then he went on Nicolle Wallace’s show and said he opposes reforms because he worries it will politicize the Court in a way that isn’t fixable. Here’s Biden: “I put together a group of constitutional scholars to try to expand the Court . . . [and] the judgment was, ‘That doesn’t make sense because it can become so politicized in the future.’”
On the one hand, I’m not sure that’s right. Our current system might be hopelessly politicized already, and the Court is partly responsible. Moreover, it’s hard to say that expanding the Court, if it could be accomplished, would exacerbate the ills of our politics; predicting the downstream effects of changes like that is a fool’s errand.
But there’s something to be said for Biden’s argument. As imperfect and enraging as some of the present Court’s decisions have been, the Trump appointees have demonstrated a willingness to buck GOP partisans desires on some cases touching major issues like LGBT rights, immigration, and, most importantly, democracy/voting rights.
Given all that, maybe the best long-term answer to the problem presented by the Court’s current 6-3 conservabloc is to follow Biden’s lead and ride it out, let elections take care of themselves, and hope that with John Roberts’s pseudo-moderateness and the possibility of a Democratic president replacing SCOTUS’s oldest current member, there might be a path away from the extremes. Or maybe that’s naïve wishcasting and more dramatic action is called for.
But regardless of whether Biden is right about Court reform, the unmistakable reality is that he is the only one acting with even a modicum of proportionality in the debate. He is trying to do right by SCOTUS even after they ruled against him on a series of major issues! I don’t even need to ask, but: Can anyone imagine Trump doing that? In fact, of all the leading players in American political life right now—McConnell, Trump, DeSantis, McCarthy—it is Biden who has by far shown the most willingness to sacrifice partisan gains for the sake of protecting democratic institutions including the Court.
In spite of his good intentions and continued norms-loving rectitude, he finds himself in the sour spot on this issue: upsetting progressives who want more radical action faster, and catching heat from the dwindling number of reasonable Republicans for being “divisive” even as he resists those on his left flank who want to rebalance a court that the right went to extreme lengths to stack in their favor.
Maybe staring every day at a big painting of Franklin Roosevelt in the Oval Office reminds Biden that this is the sort of issue that can almost sink a presidency.
Zuck’s Twitter Killer
THREADS is live. I have no idea if this will be “the one” that does in the blue bird app. But Threads does have one major advantage: the built-in user base from Instagram. The big drawback of all the other microblogging newcomers is that when big news happened, people still reflexively went to Twitter—since that is where the people were. . . . Well, if Zuck’s gambit pays off that may no longer be the case.
We’ll see how well they leverage it. If you want to get on Threads—the mobile app is available for Apple or Android devices, but so far there is no browser version—here are a few of our accounts. I am, as always, bringing the hot fire.
The Bulwark: @bulwarkonline
Charlie: @charlie_j_sykes
Me: @timmillergram
JVL: @jvlast
Sonny Bunch: @cinesonny
Hannah Yoest: @avecruth
Will Saletan: @wsaletan
Jim Swift: @jimswiftdc
Joe Perticone: @joeperticone
I’m sure Sarah and Bill will be on soon—we’ll make sure to give you their handles in future editions.
One final thing I’ll say for Elon. If he has done any service with his Twitter lunacy, at least he has demonstrated that creative destruction and the free market are still alive and well in America!
QUICK HITS
1. It’s Time To Scrutinize Canada’s Euthanasia Laws
Dhananjay Jagannathan in today’s Bulwark:
Although Canada and California have both legal provisions for MAiD and comparably sized populations, Canada recorded twenty times more deaths of this kind than California in 2021, as multiple writers have pointed out—the expansion of some version of assisted dying to ten states and the District of Columbia in recent years means that the questions raised by Canada’s euthanasia experiment are already live concerns for millions of Americans and will become increasingly relevant to millions more in the years to come.
2. Reclaiming Real American Patriotism: Let’s Rescue Love of Country From Those Who Hijacked It
This is the one thing I hope the left can take to heart from Never Trumpers . . . by Tom Nichols in the Atlantic:
Nostalgia is usually an unproductive emotion. Our memories can deceive us, especially as we get older. But every so often, nostalgia can remind us of something important. As we celebrate another Fourth of July, I find myself wistful about the patriotism that was once common in America—and keenly aware of how much I miss it.
3. Will Prigozhin Bury Putinism?
By Cathy Young in today’s Bulwark:
Let that sink in. The guy Vladimir Putin denounced as a traitor, who was charged with an armed insurrection, and who caused the deaths of a still-undetermined number of Russian airplane and helicopter pilots when his fighters shot down approaching Russian military aircraft during their march, and who ostensibly had the case against him closed only because he agreed to call off the mutiny and leave Russia, is reportedly waltzing in and out of Moscow and St. Petersburg collecting his money and weapons.
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McConnell stealing two Supreme Court seats is something that continues to piss me off to no end. There few things I hate more than someone making up arbitrary rules to suit their needs now, and breaking their rules when it suits their needs later. I do not forgive that shit and hope karma makes McConnell suffer endlessly.
I don’t think this naked partisan power grab is talked about enough. Thanks to Trump, it was more of the same and it got lost in the cycle.
It seems fairly obvious to me that there should be one justice per circuit, which means the court should currently have 13 seats. In a rational world, Congress would pass authorizing legislation that creates a 12-year implementation of that. The sitting president would get one pick, and then each of the two that followed would each get one as well. That would allow voters to weigh in over a decades' worth of elections, preventing either side from arguing that the legislation necessarily favors the other.
Too bad our leaders can't come together to make common sense reforms that would, in the end, strengthen the legitimacy of our institutions. Also, expand the House!