The Supreme Court’s Mattresses

Harvard Law lecturer Ian Samuel’s call to pack the court following Justice Anthony Kennedy’s retirement hasn’t met with resounding applause from people who aren’t blindly in denial of reality.

Unfortunately, such emotional reactions as “just get played” work better when one doesn’t think too hard about it. Not only did Ian shoot his wad too early, given that the threat of court-packing when the White House and Congress are held by the other team isn’t a stroke of tactical brilliance, but even if he’d kept his idea to himself until such time as there was some remote possibility of it happening, it would merely give rise to a spiral of each side adding more justices to own the Court.

This ain’t rocket science, as pretty much everyone told Ian. But that didn’t change his ultimate response, that they couldn’t do nothing, “just get played.” But then, if Ian refused to work it out in his head, he wasn’t alone.

With Republicans controlling the Senate and the judicial filibuster dead, the Democrats’ odds of denying President Trump a second Supreme Court appointment are slim. Barring some unforeseen development, the president will lock in a 5-to-4 conservative majority, shifting the court solidly to the right for a generation.

Slim? I don’t think that word means what you think it means, New York Times. You mean “none,” although the assumption that about how the Supreme Court will be “for a generation” may not be as simplistically pigeonholed as believed. Still, the point remains that the Supreme Court will almost assuredly not be a progressive dream team.

This is all the more reason for Democrats and progressives to take a page from “The Godfather” and go to the mattresses on this issue. Because this battle is about more than a single seat on the nation’s highest court. With public attention focused on all that is at stake with this alignment, this is the moment for Democrats to drive home to voters the crucial role that the judiciary plays in shaping this nation, and why the courts should be a key voting concern in Every. Single. Election.

As much as I love The Godfather, and always appreciate a reference given that it answers all questions, it’s not enough to say “drop the gun, take the canolis.” You have to understand the underlying concepts before invoking the reference.

Should progressives “go to the mattresses on this issue”? Certainly it’s a big issue, and one that they might have considered before creating an ideology that’s repugnant to most Americans, including those who voted for Hillary Clinton because the idea of voting for Trump was too ridiculous to consider.

But you can’t go to war unarmed. Well, you can, but you’ll just get slaughtered, and the New York Times does what Ian does, shrieks “something must be done” when there’s nothing to be done. And indeed, the balance of the editorial is all about the travesty to follow if the Dems fail to do something. What’s notably absent is anything to do. Not even an idea like Ian’s that’s doomed to fail. Just nothing.

In response to Ian, I reminded him that the opposite of bad isn’t necessarily good, but can always be worse. Having no better idea, he went emoji, because that’s what Harvard intellectuals do. But the point wasn’t that he didn’t raise a problem, but that failed solutions are still failed, no matter how desperately you want there to be something, something, to do. And failed solutions that create new, worse problems aren’t solutions at all.

While I admire the Times’ reference to The Godfather when staring disaster in the face, it’s unfortunate that it never occurred to them that the time to “go to the mattresses” was before it promoted a progressive agenda that was untenable to America, before they lost an election to Trump that couldn’t possibly be lost given that Trump was a vulgar amoral ignoramus. How could anyone lose to this guy?

There is nothing the Dems can do to prevent Trump’s nominee from being confirmed. On the bright side, the people under consideration are extremely well-respected circuit court judges, not goofballs like Jeanine Pirro. They may not be the people whom Hillary would have chosen, despite the fact that President Obama chose Merrick Garland, whose bona fides could just as easily cause conservative hearts to swoon.

But these are legitimate, respectable choices, even if they’re not exactly your cup of tea. Of course, by the time confirmation hearings are done, they will have been slandered beyond recognition by defamation-proof fools, but that’s life these days.

The cries that the sky is falling have been heard since the day Trump was elected, and yet the sky remains up there, blue (or not) as usual. People have suffered during his tenure, but people suffer during every president’s tenure, even if you didn’t know about it. The Supreme Court won’t reinvent the entirety of American jurisprudence overnight, as that’s not how it works and, more importantly, there is no one who appreciates the benefits of stare decisis when it comes to the respect of the Court better than Chief Justice John Roberts.

Yet, there will be consequences to the election, to the failure of the Democrats and progressives to grasp that their vision of a Utopia built on social justice for the benefit of the marginalized can’t be rammed down a nation’s throat. And there isn’t a damn thing they can do about it now. If The Godfather answers all questions, then the answer to this one isn’t “go to the mattresses” because the Dems aren’t the Corleones, but Moe Greene.

11 comments on “The Supreme Court’s Mattresses

  1. Denverman

    Everyone’s favorite syllogism:

    1. We must DO SOMETHING.
    2. THIS is something.
    3. We must do THIS.

    Reply
  2. Hunting Guy

    President Obama.

    “Elections have consequences.”

    Mongol General: Conan! What is best in life?

    Conan: To crush your enemies. See them driven before you. And to hear the lamentations of their women.

    Reply
  3. Skink

    “They may not be the people whom Hillary would have chosen, despite the fact that President Obama chose Merrick Garland, whose bona fides could just as easily cause conservative hearts to swoon.”

    I think you left that nut on purpose, and I didn’t have breakfast.

    There is heightened discussion, no, screaming, about “liberal” and “conservative” justices. For sure, justices have been put in one or the other camp by pundits for decades, but it’s now at a fever pitch. As always, the screamers scream without actually thinking about the facts. Thank God there’s lawyers.

    The difference between a “liberal” and “conservative” justice isn’t the political definition of those words. The difference is how they view the law, and the definition is it’s usual–how do they view the law? That is as nuanced as whether the words of the Constitution mean what they say or what they are meant to say. Most folks, even lawyers that don’t do the thinking, struggle with the difference. They just don’t see it, so they rely on the political definitions. The result is hysteria.

    Supreme Court decisions are overwhelmingly unanimous when compared to other decisions–more than 50% of the decisions in the last 75 years. When you add in “special” concurrences, there is alignment at about an 80% rate. Then there are the greater-than-5-4 decisions, including the “hot topic” cases. The “I won’t Bake that Cake” case was a 7-2 decision. Using state money to pay for church playgrounds? 7-2. Then, the cross-overs: Cellphone searches? Roberts crossed. Mandatory deportations? Gorsuch did the same.

    People want to make the Court political. I’d say it’s resisting.

    Reply
    1. SHG Post author

      But Linda Greenhouse says it’s totally political using her liberal/conservative dichotomy. Are you calling Greenhouse a filthy, dirty liar?

      Reply
  4. Dan

    “given that the threat of court-packing when the White House and Congress are held by the other team isn’t a stroke of tactical brilliance”

    I’m seeing this over and over from the left recently–proposing plans that would be, let’s say, counterproductive given that they aren’t in power. Are they just in denial about who won the election? Or are they really that self-destructive?

    Reply
    1. delurking

      Not just that, but:
      “Democrats to drive home to voters the crucial role that the judiciary plays in shaping this nation, and why the courts should be a key voting concern in Every. Single. Election.”

      Right. Start a campaign to remind voters that the courts should be first and foremost in everyone’s mind, Every. Single. Election. Which party benefits more?

      Reply

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