The Doom Loop Of Wimpy Politics

Michael: Brian, I want to challenge you on the implications of your argument that Alito might seek and gain electoral advantage for the GOP by retiring in September. I think your story of how this would happen is very plausible. The GOP has been using SCOTUS as an issue to drive out its base for decades and it has been very effective for them.

But in other contexts you have (I think) argued that Dems should pack SCOTUS at the earliest opportunity.

Given the GOP track record of effectively wielding SCOTUS as an electoral issue, isn’t packing SCOTUS just going to be a recipe for massive electoral backlash?

I honestly don’t know whether SCOTUS is still the great electoral issue it was for the GOP pre Dobbs, Trump imunity, many other bad rulings, etc. But if you tell me thatt the GOP, with help from Sam Alito, can ride that issue to midterm success (at least in a relative sense), then what makes you think Dems could both pack the court and retain power (withotu which the court would very quickly be repacked by the GOP)?

Personally, I’d feel way better about the potential for court packing or other reforms if Sam Alito announced his retirment in September and the GOP tried to run on it and got spanked, than if it turned out to be an effective tactic that allowed the GOP to cut its losses and maybe hold the Senate.

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There is a tension here, in that Democrats, as the party of constitutional softball, frequently use rhetorical wiggle-room as an offramp from confrontation, rather than as means of throwing Republicans off the scent of their plans. Strategic vagueness can be a tool for advancing reform without attracting controversy; it can also be a tool for pandering to your own supporters without actually pledging to do what they want. This is why advocacy groups and activists are always at pains to nail Democrats down to specific public commitments, which are much harder to walk away from.

So, it’s true, I want Democrats to expand the Supreme Court at the first opportunity. I’m also sensitive to the fact that waging a presidential campaign on a big open promise to expand the Supreme Court may not be the most strategically sound way to win power.

This is why, in the past, I’ve suggested Democrats could make somewhat vaguer threats and commitments—that there will be a “reckoning” for the theft of the court, and its subsequent abuses, etc. etc. The problem is: see paragraph one. This is a dilemma that arises from losing the trust of your own voters. And you can see how it might create a doom-loop of defeat: To win back trust, Dems might make more controversial promises, which in turn make them likelier to lose, which in turn erodes trust further.

The good news is, there’s 2.5 years to go until the earliest possible opportunity to reform the judiciary. It may be that Democrats defy 18 years’ worth of expectations between now and then, and begin acting like a dignified opposition party, such that Democratic voters feel comfortable taking a flyer on a campaign pledge that’s less concrete than “I will add four seats to the Supreme Court.” The court is also badly discredited already; by 2028, there may be enough of a clamor for reform that Democrats no longer have to fear backlash.

That seems to be what Pete Buttigieg believes. He’s been talking pretty openly about court reform in recent weeks (though a few things he’s said make me question his commitment to reforming the court as a matter of immediate business—perhaps I should reach out to him for a clarifying discussion).

Either way, point is, we have time before Democrats have to make any major strategic campaigning decisions. This is a question for 2028, not for the midterms.

And this is partly why I’m a bit indifferent, personally, as to whether Alito and Trump attempt or even complete such a naked power grab—so long as Democrats don’t simply resign themselves to defeat, as they did when Mitch McConnell stole the Scalia seat in 2016. I want Schumer to do what I argued he should do at the bottom of that piece. To begin jawboning now, before Republicans can set any scheme in motion. If it doesn’t “work” in the literal sense of deterring the power grab, it will still hearten voters in the Democratic electorate, and strengthen the case for expanding the court down the line. It may actually be salutary, in some sense, for Alito and Trump to run such an outrageous Hail Mary play, because it would underline the moral and political imperatives of court packing, and circle them in red ink.

I often get accused, by people with more conventional strategic views, of prioritizing expressive politics (e.g. jawboning) over substantive politics. I think it’s basically an unfair charge—literally false, based on a false dichotomy, and, frankly, a difficult allegation to parse. Politics without “expressive” politics would be incomprehensible. If you think perception matters at all in politics, then adopting an attractive or respectable posture is essential, even when there are no obvious stakes.

But it’s also true that rhetoric often serves as policy change even in the absence of new rulemaking or lawmaking. Wonks who recoil at the notion that Democratic politics should entail much more “expressive” partisan brawling understand this perfectly well in the context of, say, monetary policy. Communication from the Federal Reserve has a real if invisible mechanical effect on market behavior.

Something highly analogous happens when a political leader speaks with authority about his party’s intent. If Chuck Schumer were to say, credibly, that Democrats will not provide votes for the September budget unless the legislation proscribes Trump’s efforts to subvert the election, that changes politics. Substantively, it anchors negotiations in a clear place, which should tend to shape the outcome. It also elevates an important issue—Trump’s open but arcane efforts to cheat in the midterms—and puts Republicans in a bind: Do we stand up to Trump? Or do we go into the midterms with the government shut down, on the principle that Democrats must fund their opponent’s coup d’etat?

The same thing holds on the “expressive” side of judicial reform politics. If the Democrats’ express position