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Justice sometimes requires the right argument spoken in a quiet but firm voice, and sometimes it requires understanding how to get power and what to do with it.
When you heard last Friday that Ruth Bader Ginsburg had died, you were probably shocked, saddened, perhaps even despairing.
Now you should get angry.
President Trump has the constitutional power to appoint a successor to fill Ginsburg’s seat, and Republicans in the Senate have the power to confirm that choice, whether it’s two months or two days before the election—or even afterward, in a lame-duck session before the next Congress is seated. There are complicated calculations being made right now by Senate Majority Leader Mitch McConnell to decide whether doing so would be the cleverest political strategy for him and his party, but all the talk about whether it would be wrong is mostly just noise. This is a moment when power is at stake, and little else matters.
Unfortunately, power is something Democrats in Washington think far too little about. Without exception, every argument Republicans make for why it’s appropriate to fill this seat right now is unadulterated baloney (or “pure applesauce,” as Antonin Scalia would say), because they’re meant to cover for the truth: “We can, so we will.”
That has been the principle that has guided the GOP for the last two decades: If there’s a way to seize and hold power, you take it. If you can change procedural rules in Congress in a way that works to your advantage, you do it. If you can find ways to suppress the votes of the other party, you use them. You employ whatever means are available to pursue your goals and kneecap your opponents. Only the weak worry about norms or propriety or precedent or whether they’ll be the target of a strongly-worded editorial in the Washington Post.
As I’ve often said, Republicans are the party of “Yes, we can” while Democrats are the party of “Maybe we shouldn’t.”
Over this period, dating back to the Florida 2000 debacle, with a momentary exception here or there, the ruthlessness gap between the two parties has widened to a chasm. As I’ve often said, Republicans are the party of “Yes, we can” while Democrats are the party of “Maybe we shouldn’t.”
That has seldom been more clear than it is right now. Should the Senate confirm whichever 40-something far-right Federalist Society judge Donald Trump picks, it will mean that conservatives will enjoy a 6-3 majority on the Supreme Court despite the fact that they lost the popular vote in six out of the last seven presidential elections.
That majority will be used to reinforce this age of minority rule, in which Republicans enjoy the support of far fewer Americans than Democrats and pursue a remarkably unpopular agenda, but nonetheless control most of the country’s key centers of power.
Does that make you angry? It should. And it should make you want to do something about it.
But if you really want to get ticked off, think about what this new conservative Supreme Court—one so conservative that depending on how you measure it, Brett Kavanaugh will sit at its ideological midpoint—is likely to do.
The first case that comes to everyone’s mind is Roe v. Wade, which the court will either overrule outright or render meaningless by gutting the “undue burden” standard established in the 1992 Planned Parenthood v. Casey case, which would allow states to regulate abortion providers out of business and thereby make it impossible to get an abortion even if technically you were legally entitled to one.
But that’s just the beginning. Of late, Chief Justice John Roberts has been a voice of restraint on the court, stepping in to vote with the liberals when he finds it necessary to save the GOP from itself. With five other conservatives in place, he will no longer have the ability to do so.
So will the Affordable Care Act be struck down in its entirety, as the Trump administration and Republican states demand in a case the court will hear after the election, stripping 20 million Americans of their coverage and throwing the entire American health care system into chaos? You bet. There will be assaults on voting rights (one area where Roberts will enthusiastically vote with the other conservatives), which will likely include striking down nonpartisan redistricting commissions as unconstitutional. The entire structure of campaign finance regulation could be dismantled. Environmental laws will be struck down. There will be rulings enabling discrimination against LGBTQ Americans in the name of “religious liberty,” aka special rights for conservative Christians. Corporations and wealthy people will have their every desire confirmed; those without power will find sympathetic ears only in an ineffectual court minority.
That’s not all. Imagine Biden is elected and Democrats take the Senate, then they pass a series of ambitious laws expanding access to health care, enhancing workers’ rights, taking action on climate change, and following through on the rest of the agenda Biden ran on.
And then the Supreme Court strikes down every one.
Or worse, think about what would happen if Donald Trump is reelected. Stephen Breyer is 82 years old. What if he retires or falls ill some time in the next four years? Conservatives would have a 7-2 majority on the court. They would shape our laws and shore up Republicans’ hold on power for decades.
If that prospect makes you angry and afraid, it should spur you toward action, not just in this election but beyond. The appropriate response to this moment of peril is for Democrats to focus on power in the same way Republicans do: acquiring it and using it to solidify their hold on it at the same time as they wield it to advance their substantive agenda.
To be clear, that doesn’t mean being unethical—not at all—but it does mean being ruthless and unashamed. For instance, if Biden does win and Democrats take control of the Senate, they should immediately eliminate the filibuster, then pass bills to give statehood to the District of Columbia and Puerto Rico. Not only would it be the right thing to do, it would likely mean four more Democratic senators, which would at least begin to address the fundamental tilt that gives Republicans an unfair advantage in the Senate, where far more Americans vote for Democratic senators yet Republicans hold a majority.
And it means that if Donald Trump sees his pick for the court seated and then loses, Democrats should increase the number of Supreme Court seats and allow Joe Biden to fill them.
To any or all of these moves, Republicans will cry “Unfair! Power grab!”, and pundits will agree. To which Democrats should reply, “Too bad.”
You might ask whether nurturing your anger and pushing your representatives to become more ruthless is the best way to honor the legacy of Ruth Bader Ginsburg, who devoted her life to increasing the quantity and quality of justice in the world. But justice sometimes requires the right argument spoken in a quiet but firm voice, and sometimes it requires understanding how to get power and what to do with it. That’s where Democrats have so often fallen short—which helps explain the position they’re now in. If they want it to change, they’re going to do something different.
