I’m Michelle Goldberg.
I’m Ross Douthat. And this is “The Argument.” [THEME MUSIC]
Today, what’s the fate of the Supreme Court? Will Justice Ginsburg’s seat be filled before the election. And amid all this dysfunction, how should the highest court in the land be reformed?
Because 2020 wasn’t intense enough, Supreme Court Justice Ruth Bader Ginsburg’s passing last week has given President Trump the opportunity to further reshape the high court, with less than 40 days until an election that he is currently on track to lose. Amid pleas for restraint and accusations of hypocrisy, Senate Republicans are planning to fill the seat, while Democrats are threatening to respond by appointing extra justices, a practice historically known as court packing, should they take the Senate. Michelle, I can talk about what the Republicans are thinking here. But let’s start with what is for now the opposition party in the Senate. What’s the Democratic mindset heading into this fight?
I think Democrats, even a lot of moderate kind of rule following, norm respecting Democrats have been extraordinarily radicalized. First, by what happened to Merrick Garland, now by trying to shove through this new nomination on the brink of the election. And so if you’ll remember, Scalia died in the very beginning of Barack Obama’s last year in office. And Republicans said that is too soon to appoint a new justice and that the voters should be able to decide. And they basically refused to move on this very moderate and obviously well-qualified judicial pick that was sort of designed to be conciliatory. This wasn’t a super progressive judge. It was a pretty establishment judge. And they held it up all year. And you know, it was obviously just an assertion of raw power. But they dressed it up in a lot of self-righteous language about there being some kind of quote, unquote rule, the McConnell rule, that we just don’t do this. We just don’t vote on a judge this close to the election. And they went out of their way to say we will respect this rule even in the last year of a Republican administration. You have Lindsey Graham saying, please if this ever comes up, I invite you to use my words against me. And so it’s not that Democrats are shocked by Republican hypocrisy and I think Democrats are coming around to the view that you can’t even criticize Republicans for hypocrisy, because Republicans don’t view hypocrisy as a vice. They just believe that power is there to be pushed to its absolute maximum. But there’s still something so insulting, so blatant about it. The first piece I wrote when I became a New York Times columnist was about the tyranny and the kind of crisis of minority rule in this country. The fact that we’ve had, you know, several elections where the popular vote loser has won the election. Then we have this Senate that is controlled by an ever shrinking minority of the country. And so there’s a sense in which this is being used to further solidify this kind of doom loop of minority rule. And I think the ultimate fear, which Donald Trump has been pretty upfront about, is that Donald Trump plans to steal the election. He plans to contest the voter result. And that the most important reason that Donald Trump wants to put another judge on the bench is to have somebody to ratify an illegitimate claim of victory on his behalf. And so this isn’t just anymore about the end of Roe. I think for a lot of Democrats, including myself, it really feels like it’s about the end of American democracy.
So I guess to sort of start where you started. I think that Mitch McConnell himself, if you go back and look at his rhetoric in 2016, he was careful to usually say, look, we’re not confirming this justice in a year when the Senate is controlled by one party and the White House is controlled by the other party. So from that point of view, there is some sort of notional rule that’s being followed. However, lots of other —
Well that was a wholly made up rule, right?
Well, it was a made up rule that was based on things that Joe Biden had said in the past. That was what McConnell was trying to do, basically. Saying, oh, Democrats have made a version of this argument. I’m adopting the argument as my own. And I think I said at the time, basically that, you know, my view then and my view now is that the Supreme Court has become so impossibly powerful in its impact and influence and role in not just abortion, but sort of constant, like, you know, both sort of attempts to preside over and negotiate culture war disputes, but also weird sort of rewriting of laws in order to save them, and all of this kind of stuff, that the way we did confirmations in the past really hasn’t made sense for a long time. It clearly stopped making sense from Robert Bork onward. And what Republicans should have said in 2016 was, you know, Antonin Scalia’s seat is incredibly important. And you know, as long as we have the power in the Senate, we’re not going to appoint a liberal replacement. On your point about what happens with a negotiated election, this is going to be me sounding maybe more optimistic as usual than I should be. I think that the people that Trump has appointed, and if it is Amy Coney Barrett, the person he is likely to appoint in this case, are likely to be extremely aware of the sort of, you know, Trump appoints justices and steals the election outcome that you’re talking about. And so whatever happens with a contested election, I doubt it would be as simple as Republican appointees on the Supreme Court rule 6 to 3 to make Trump the president.
Well, why? I see very little evidence that conservatives in general are increasingly abandoning even the pretense of Democratic legitimacy and, you know, just going for it. And I don’t see, when they don’t actually have an election in front of them, right, when the actual election is in the immediate rearview mirror, why they wouldn’t just continue this pattern of maximal power, despite what the people want.
I guess I think there’s sort of three levels, right? There’s a difference between what MAGA conservative Twitter and certain Fox News hosts want versus what Republican senators want versus what Neil Gorsuch, Kavanaugh, Roberts, and in this hypothetical scenario, Barrett, will do.
I guess. I don’t know. To me, this reminds me of all of the establishment law professors assuring us all that Bill Barr really cared about institutions and that we had nothing to fear from him. I mean, to me, anyone who would accept a nomination from Donald Trump under these circumstances is, by definition, a partisan of minority rule.
So I guess from there we can talk about sort of this possibility that was floated and seems to have evaporated, but there were some people, mostly on the center right in the last few days, especially before Mitt Romney and Cory Gardner and others said that they would give a nominee a vote, who were talking about some kind of trade, basically. Where Republicans in the Senate agreed not to confirm a nominee before the election and in return, Democrats would make some combination of promising not to pack the court, not to abolish the filibuster, not to admit Puerto Rico as a state. There was sort of a list of more radical moves that the Democrats could theoretically make under a Biden presidency that would be taken off the table in this deal. And I think, one, I’m curious what— you know, again, it’s not going to happen— but what you think about that kind of hypothetical deal. I would say from my point of view, the challenge — to go back to what you just said — for Republicans who, especially social conservatives, who think that the court has sort of remained against them in some way even over years of official Republican appointees, is, you know, if you say Donald Trump’s a bad man and he is a threat to the republic and therefore we won’t fill this seat, you’re saying we’re giving up 30 to 40 years of immense power in the republic that, you know, this seat contains. That’s a really hard thing, I think, to imagine people in a polarized country giving up.
Oh, yeah. It doesn’t surprise me that they’re not giving it up, right? This is why they’ve done this to us. I mean, this is why they have driven the republic to this precipice. It’s all been for this. I mean, I understand the ferocity with which they want to take these rights away from us. I understand that the existential project of their lives is rolling back Roe versus Wade, rolling back the civil rights revolution, rolling back, really, a lot of these new deal constraints on big business. And they’re certainly not going to do it in exchange for respecting norms, right? They’re certainly not going to do it out of some sort of high-minded devotion to bipartisan comity, right? I mean, that’s why this was always a non-starter. I think liberals would have taken a version of that deal, like holding the seat in exchange for not adding justices to the court and not abolishing the filibuster. Because Democrats, in general, really mourn the death of these norms. I mean, something that’s happening simultaneously with this— Democrats have just rolled out this huge package of sort of post-Trump reforms designed to curb his abuses of things like the pardon power, the emoluments clause, his defiance of congressional subpoenas. And the interesting thing about this package is that it only gets signed in a Biden presidency, right? So what Democrats are proposing to do is to really severely curtail Biden’s power vis-a-vis Congress, even though it’s quite likely that Biden could face a Republican Congress at some time. But I think the interesting thing is that Democrats really are committed to these kind of procedural norms, so much that they are trying to write them into law at a moment when they think that they could get Republican support precisely because Biden would be the one who would be constrained by them. Democrats are just not naturally comfortable in this sort of Hobbesian war of all against all, right? Democrats really do want a technocratic, procedurally liberal system. And they feel like that’s being destroyed. At the same time, I think a lot of them are coming around to the view that they can’t uphold that on their own. And that if they do, they’re just going to keep getting rolled.
Yeah. I mean, I guess I think two things about that. I think that first, the Democrats who think that you have to be willing to escalate are correct in the sense that I think we have sort of a general sclerosis and breakdown in our political system that’s manifest in all kinds of places. But the Supreme Court is sort of the most extreme example. It’s, like, if you’re going to get to an outcome, you know, where the Supreme Court sort of functions in a saner way, you’re basically going to need both parties to sort of escalate to the point of exhaustion. Which is why, I think, it’s — you know, I guess I’m less worried than some of my center right friends about a scenario where Amy Barrett is on the Supreme Court and the Democrats then try and put two more justices on under a President Biden. Because I think ultimately, if that sort of weakens the influence of the Supreme Court, that could be a good thing. I can see as many ways in which it ends up being a good thing for the American system as a bad thing. I also want to go back to what you were saying about the counter majoritarian issue here, right? Which is that I think one core reason that liberals have tended to have this idea that the legitimacy of the Supreme Court is central, and we tamper with it at our peril, is an assumption that the technocrats will be liberals. And this was buttressed by the fact that even once Republicans took the presidency and started making appointments, you ended up with a lot of justices who just became liberals or were liberals from the beginning, as John Paul Stevens and David Souter were. But then you also had, as your swing votes, figures like, in different ways, Anthony Kennedy and Sandra Day O’Connor, who were sort of center right on economics and center left to liberal on social issues. When liberals talk about upholding norms, that’s the norm they’re talking about upholding. A court that is maybe a little bit more friendly to business than they would like, but that ultimately wants to remove issues that social conservatives care about from the democratic process, which is what Roe did. It’s what the same sex marriage rulings did. It’s what, in a way, Neil Gorsuch did with the, you know, civil rights and transgender rights issues. I mean, the liberal judicial project on social issues has been to remove issues from democratic debate.
So I want to say two things about that. I mean, first of all, Republicans are not sort of victimized if Republicans nominate judges and those judges, as they settle into their roles and dive deeply into the guts of these various cases, decide that conservative interpretations are incorrect. It reminds me of kind of complaints about the lack of conservatives in academia or the lack of conservatives in the media. I mean, part of it is just that the more you know about certain things, the less likely you are to agree on balance with conservative interpretations statistically.
That’s a very convenient result, I will — I guess.
The other piece of this is that I don’t think that Democrats believe that every institution in American life should be majoritarian. I don’t think that Democrats believe in the pure tyranny of the majority. And obviously, they cherish these civil rights rulings which were about protecting minorities from hostile majorities. What’s different now is not that there’s one minoritarian institution in American life, but that there’s only minoritarian institutions in American life. That the majority has basically no scope for exercising federal power unless they win near super majorities in order to take back the Senate or win the presidency and the house. And it also comes at a time when, again, you have a president who is openly talking about staging a coup with the help of the Supreme Court, that he is preparing to jam another judge on, another judge in a seat that Democrats regard as stolen from them. And is treating huge parts of the country with almost murderous contempt, sneering at the unbelievable suffering that you’re seeing in California and the West with these wildfires, threatening to withhold money from New York City, which has just been pummeled and gutted by a virus that the president has refused to really do anything to control. People in the White House openly talking about how this wasn’t important to them because it was a blue state problem, right? So we’re basically being ruled by people who would leave us to die. And it is in that context that the role of the Supreme Court in cementing minority rule seems not just like a countervailing institution to the more Democratic parts of the government, but seems like part of just a structure of domination.
The phenomenon that you’re describing overall is a phenomenon of basically the last four years in American history. So in 2012, Barack Obama had an advantage in the electoral college, which Democrats also enjoyed in 2004 and 2008, I think. So we’ve had this period of 2016, and to some extent, the Senate races in 2018, where the more democratic branches are reflecting minoritarian preferences.
The dictatorship only being four years old is not a comfort!
Well, but I mean, without getting into whether Donald Trump is a dictator, the way the American system is set up that you have, you know, windows where the structure of the system doesn’t align perfectly with popular vote totals. And so a big question is what happens in 2020? It seems like if you look at Joe Biden’s current strength in polling in Wisconsin and Michigan, in the upper Midwest, and so on, it’s not clear to me that the electoral college or the Senate map is going to look like it did in 2016 or 2018.
I would argue that most Democrats don’t believe there’s going to be a free and fair election. And, again, believe that important parts of it are ultimately going to be decided by the Supreme Court, which is why it seems so pernicious that Donald Trump is being allowed to stack the court on the very eve of what he has already said will be an election whose result he contests if he loses.
Do you think the Democrats should try to make this more a fight about abortion? Supreme Court fights are always about abortion at some level. But they rarely seem to become, like, literal actual debates about Roe v. Wade and abortion. Do you think Democrats should try and change that?
I mean, not necessarily. I do think, and I wrote a column about this, that I think it’s good that Josh Holly has basically said I want on the record confirmation that the nominee views Roe versus Wade as a travesty, right? So I think it would be better for Democrats if this conversation was actually about abortion as opposed to being about stare decisis and precedent, in part just so people can follow it and really be clear about what’s at stake. But no, I don’t think it should be about abortion. I think it should be about the illegitimacy of the process, about it being part of Donald Trump’s plan to ignore the electorate and secure himself a victory. And I also think that Biden is smart to make it about the Affordable Care Act.
Yeah. I mean, I think that last point is politically smart. One interesting thing about Barrett is that, in a law review article she specifically critiqued the way John Roberts saved Obamacare in the first Obamacare case to greet the Supreme Court. And I mean, I actually think her critique was correct, that Roberts’ way of saving the law was really ridiculous. On the other hand, I think he was correct to try and save it.
Right. But I think that that gives us reason to think that she will not save it.
Well, right. But see here, the current case about Obamacare that’s before the Supreme Court is considered by most conservative legal scholars, including the ones who were on the anti-Obamacare side in the previous two Obamacare cases, to be a much, much weaker case. And so there is an expectation in the conservative legal world that no matter whether Ginsburg is replaced or not, that you’re not going to get five justices to vote that way. So I want to go further than this and talk about where that kind of potential radicalism could lead and what it could mean for the Supreme Court. But that’s what we have our second segment for. So we’re going to take a short break. And we’ll be right back. [MUSIC PLAYING]
And we’re back. As I mentioned in the first segment, while there are obviously wide partisan differences on what should happen with the Supreme Court, there seems to be some hint of bipartisan agreement, at least that the current system of judicial nominations just isn’t working. So is there an alternative? Along with the current threat of court packing, you’ve had both liberals and conservatives broaching the idea of Supreme Court reforms, like term limits for justices. What’s interesting is that in the recent past, it was usually conservatives, and especially religious conservatives, who would argue for reforms to limit the Court’s power and assert some kind of more democratic authority. Now it’s liberals picking up that kind of argument. Our colleague, Jamelle Bouie, for instance, just wrote a column arguing, and I quote, “That if Democrats are willing to treat a Republican-dominated Supreme Court as a partisan and ideological foe, if they’re willing to change or transform it rather than accede to its views of the Constitution, then they’re one important step along the path to challenging judicial supremacy, the idea that the courts and the courts alone determine constitutional meaning.” Jamelle has kindly agreed to join us for this conversation. How’s it going, Jamelle?
It’s going pretty well.
Jamelle, I was really struck by the similarity of your columns critique of the Court’s power and critiques that I well remember from religious conservatives back in the 1990s, let’s say. Could you walk us through your thinking on specifically what kind of reforms would need to take place to make the Court less powerful?
Sure. I think I first want to say that I think you’re right to see the similarities between arguments like mine and those of religious conservatives. I think for my part, me personally, I’ll fully admit to not really thinking much or thinking seriously about the Supreme Court until Trump won election in 2016. And so it’s only been in the last four years that I’ve actually thought seriously about what it means for the courts to have this kind of ironclad power of the ability to interpret the Constitution, especially in light of the fact that the presidents I admire the most have been the ones who have taken a skeptical eye towards that. Now having said that, I’ll answer your question. I think we discussed this last year. Last year, I wrote about packing the Court. And we had a conversation on this podcast in October 2019, for listeners who want to go back to it.
It’s so long ago that I’ve forgotten everything that we said, though.
One thing you brought up was this question of tit for tat, that if Democrats expand the court, then Republicans can expand the court. And where does it all end? And I think I suggested that maybe the place it ends is a place where people just put less weight on what the Court says. And so if the goal is to just get everyone to challenge or just put less weight on what the Court says about what the Constitution means, then taking steps like expanding the size of the Supreme Court, setting up the possibility of a tit for tat, I think does exactly that.
But Jamelle, let me ask you, if you weaken the Court and sort of say that it isn’t the ultimate arbiter, then how do you enforce the rule of law? Right? I mean, we’ve seen what has happened with a president who doesn’t care about the law, refuses to be constrained by the law. If you don’t have some structure of enforcing a law, of saying what the law is, then how do you not just kind of set yourself up for, say, a president Tom Cotton to completely revoke the right to speech and assembly of protesters in blue states, for example?
So I think what a lot of folks are looking for is something outside of political contestation to say what the rules ought to be and what the rules are and what is allowed and what is not. And I just don’t think that’s possible. I think that the last 50 years of trying to make the Supreme Court that institution has not been particularly good for American democracy. I think that to the extent that it even works that way, it’s sort of not very often. Right? The period of kind of accelerating judicial supremacy coincides with Jim Crow. It coincides with a whole host of attacks on the rights and liberties of ordinary people of judicial indifference to say no wanton vigilante violence against Black Americans. So the scenario in which President Tom Cotton which, as a parenthetical, I don’t think Tom Cotton’s ever going to be president. Have you guys ever, like, watched that guy speak?
From your lips to God’s ears.
It’s the Tucker Carlson presidency.
Right, right. I think — he’s, like, a nerd. [LAUGHING] And the American people, they’ll tolerate a lot. They don’t tolerate nerds. [ROSS LAUGHS] But the world in which a President Tom Cotton declares freedom of assembly, or protesters can’t assemble and tries to destroy free speech rights, that’s a world in which president Tom Cotton has a considerable amount of political power and has a legislature that’s behind him, or at least a Senate that will not impeach him. There’s a lot of things that have to go right for that to happen. And I’m not sure the courts can stop that, which we’ve seen now, right? So for me, the solution to the problem of — in a world where what the Supreme Court says about a law, maybe only applies to that law, but isn’t binding precedent for all laws for the future. In that world, the solution to upholding the rule of law is a more robust democratic politics. It’s a less counter majoritarian, a less minoritarian political system. It’s one where we really do take one person, one vote very seriously. And it’s why, whenever I recommend these things, it’s always as a package of reforms. You lessen than the past Supreme Court. You increase the size of the House of Representatives. You find ways to deal with Senate malapportionment. You basically try to strengthen other constitutional actors by way of democratic reform to really set up real contestation between the three branches.
So here’s a question, Jamelle, right, I think this is true on both sides. But one concern that I’ve heard from liberals about a court packing future is that you get into a scenario where the Court is seen more explicitly as a partisan institution. And the result is that state governments start ignoring it, or you know, being much more aggressive in circumventing its rulings, right? So you can imagine a future with a, you know, weakened bipartisanship courts where, to Michelle’s horror, you know, the state of Texas passes abortion legislation. The court strikes it down. And Texas says, well, you know, let them enforce it. And maybe there’s a Republican president, and nothing happens, and the law stands. Or you could flip it and imagine, you know, the Republican court makes a ruling that Gavin Newsom’s California just says, well, this is an illegitimate court and we’re going to ignore it. Right? How do you feel about that kind of resistance slash nullification to your weakened court of the future?
I guess it doesn’t sound all that different to the status quo, to be perfectly honest. Right? We’ve just witnessed what 10 years of state based lawsuits to the Affordable Care Act that kind of take basically that exact approach.
Right. I mean, the point of those challenges is to probe what are seen as sort of the weak spots or the zones of contestation in existing Supreme Court precedent. Right?
I mean it’s very different, I think, to work without limits.
I mean, my view is that — and I’m curious to both of your reaction to this — is that I agree with Jamelle, right? That people in this weaker court scenario would be constrained by politics in lots of cases. But what that would mean is that you would be living with a world in which five or so very conservative states went a lot farther on, say, abortion regulation than they do now and where five or so liberal states, let’s say, went a lot farther on gun regulation, or you know, you can pick other examples, than they did right now. You would be accepting more extreme outcomes in political outlier states than you have right now in this trade off. Do you think that’s right or not?
I think that’s probably right. I do see this as a game of trade offs, like, broadly. That right now, the price of a strong court, or a court that has exclusive determination over what the Constitution means, is a real limit on the ability of governing coalitions to govern on those rare occasions that they have, that you get the wrong court configuration, and your plan to expand Medicaid to the entire country is rendered essentially— has been neutered, which is what happened. And I think that’s a bad trade off. The fact that an elderly woman dying has just up ended American politics in potentially very fundamental ways just seems insane to me.
That is evidence of judgocracy. I think everyone, liberals and conservatives, left wingers, right wingers, would be well-advised to take a step back and ask themselves, to the extent that you want a democratic country, do you want a democracy that looks like this?
But let me ask you this. I mean, in the absence of some body that’s empowered to interpret the Constitution, again, how does the Constitution stop from becoming just purely optional? I mean, I feel like a lot of people treat it as purely optional now. But it does, nonetheless, provide a framework that organizes our national life, that provides some limiting principles on what various political actors feel like they can get away with. Once it’s just sort of up to any political actor to interpret it in line with their political interest, yeah, what — I mean, and the Constitution, don’t get me wrong. I think the Constitution is flawed in a lot of ways. But I think that without it, what framework do you have for organizing, for holding the country together in any way at all?
But the framework, I mean, historically, the framework can be altered and/or imposed. And I think, Jamelle, you would agree with this, by really successful democratic, small “d” democratic politicians. Right? So you know, if you look at the history of constitutional interpretation around the New Deal, the Supreme Court sort of changed its constitutional interpretation to reflect Franklin Delano Roosevelt’s constitutional interpretation at some level, right? Because of a bunch of things, because F.D.R. tried court packing as a sort of threat, but also because he won huge national majorities. And the court, in order to maintain its own legitimacy, had to be responsive to those kind of majorities. And I think, to some extent, this is what I see as sort of the ultimate answer to the dilemmas that everyone is wrestling with, but that are driving liberals and Democrats particularly insane at the moment, is that you need a political coalition and a leader to emerge that’s capable of actually winning super majorities and thereby, out of that power, sort of reworking the system the way Lincoln did and F.D.R. did. Like, that’s sort of what American politics has been missing, is strong majorities with— weirdly, with strong presidential leaders. Imagine a future scenario, I guess, where you’ve had a couple rounds of court packing. You know, the Court is in flux and delegitimized. But some center right or center left politician comes along who’s able — not Tom Cotton, probably — you know, who’s able to win big majorities in both houses and to effectively decide what will the design of the Supreme Court look like for the second half of the 21st century. How would each of you redesign it if you were that President? It’s the Bouie presidency or the Goldberg presidency. And you can push through, as sort of legitimizing, quasi-bipartisan, because you have all this political capital, court reform. What do you do?
You know, Lincoln argues in 1858, I think, that the court should show much more modesty about its ability to interpret the Constitution. That even if you grant, constitutionalism cannot work without some body that can say what the law is. And even if you grant that Supreme Court is that body, the Supreme Court, the individual members, they also can exercise forbearance. They also can decide to say, we believe these questions are best left to the political process and not to us. And so we can decide this particular case, but we’re not going to make any judgment about what it says about what the Constitution means. Or we’re not going to say that this binds political actors to our decision between these two particular parties. And that’s where my preference basically lies. That the Court should also see itself as only really intervening when it’s absolutely necessary. And the kind of reforms I’m interested in are basically ones that would add a good deal of uncertainty and randomness to the Court. But ideally, if a case comes to the Supreme Court, no one should really know how it’s going to be decided. And I think you accomplish that by basically making the court very large, doubling it, tripling it even. I don’t know, doubling it. And having cases determined by a random selection of judges within. You end lifetime terms. You have staggered nominations, so that every president over some time horizon will get a certain set. But I think the big thing is adding uncertainty. And I think this kind of goes for the entire political system. One of my hobby horses, if you look back at the design of the Constitution, if you look at what Madison was trying to accomplish, it was basically that. The idea being, we have this gigantic republic. There are so many divergent interests. That no one would be able to form an absolute majority, that no one would be able to coordinate exactly in the right ways needed to impose their will on another side. And so it’s going to force compromise and deliberation, all these sorts of things. And I we’ve kind of moved away from that Madisonian vision, which I actually think is, for all of my founder critique and occasional founder bashing, I actually think that’s very much right. I think Madison was 100 percent correct.
Michelle, what is your take on the randomized Supreme Court future?
Yeah, I think that that would be far superior to what we have now. And mandatory retirement would also be a huge improvement. Because what we have right now is the system incentivizes a huge amount of hypocrisy in the judicial confirmation process. Whereas a system where you had mandatory retirements, you wouldn’t have as much of an incentive to only nominate people in their 40s. It would allow you to choose from more seasoned judges. You would have both more randomness in terms of the group of people who are deciding cases, but also more reliability in this sort of temperament and philosophy of the people that you were choosing. Because one of the things, I think particularly on the right, one of the reasons that they’re demanding an Amy Coney Barrett, or that they’re demanding somebody who has sort of the most extreme conservative bona fides is because they believe that anything short of that is likely to turn into another one of these disappointments for them.
Well it’s a little more that — I mean, Amy Coney Barrett’s actual record is, I think, not that dissimilar from any other mainstream conservative jurist. The truth about Amy Coney Barrett is the reason that social conservatives want her is that they think a Roman Catholic mother of seven children, two of them adopted, one with special needs is more likely to be willing to overturn Roe than a more secular conservative man.
No, they don’t think she’s more likely to overturn Roe because of her personal history. They think she’s more likely to overturn Roe because of her writings, right? Because of her writings about kind of flexibility regarding precedent and because of her writings blatantly in opposition to abortion?
I mean, I don’t want to speak for, like, every social conservative who’s invested in this, but I think that these sort of identity and personal life story side of this is at least as important as anything she’s ever written. And I think, probably, more so. I agree with 95 percent of what Jamelle said. And I think we have achieved sort of bipartisan agreement on an imagined future of the Court. So to end on potential disagreement, I mean, does it change your view of this future, Michelle, if I told you that the cost of it would be that, you know, the effects of the Court would move 10 percent or 20 percent to the left on economic issues, but 10 or 20 percent to the right on abortion so that some zone of abortion regulation was available to five or 10 red states?
Well, look, Ross, I think that we fundamentally disagree that some zone of abortion regulation is not available.
No, I mean, I’m conceding that some zone is available. I’m saying the zone would expand. There would be, in 5 or 10 conservative states, that would end up being more second trimester regulations than they pass now. Like, if I tell you that’s what waits in this future, do you still like this future?
I mean, I don’t like this future. But I would take it over what we have now. But partly, that’s because I think that what we have now, I think Roe is dead. The degree of sort of personal degradation I feel about that, the degree of shame I feel about raising my daughter in a country where, again, I don’t feel like we are full citizens if the government can force us to bear children against our will, again, I feel so deeply dehumanized by what’s about to happen and by what’s about to happen at the hands of, of all people, Donald Trump. I mean, it is just gut wrenching to me as a person, as a parent. But it’s happening. And so yes, I would take an alternative future over that.
Looking back at the past 40 years of the progression of rights for women or rights for racial minorities, looking at how, even with the nominal protection of the Court, they have been rolled back such that, you know, tens of millions of American women have limited abortion rights and many American women have effectively no abortion rights given they have very little access to abortion services, given that much of the United States is still very segregated and that schools, as our newspaper has reported many times, the nation’s schools have basically embarked on a resegregation, I don’t know how you design a court that protects those gains in a substantive way. I don’t know how that happens. I do know that one way to protect those gains is through political contestation, by winning political battles, winning arguments. And it’s a gamble. It’s a real gamble. But I think that I think that a weaker Court, or at least a Court that does not have such a prime place in American politics, we might be able to protect those rights more effectively than we can right now.
I would just say that listening to both of you makes me just want to stress how much things can change in American politics in a very short amount of time. Things may look very different on these debates in 2024 than they do now, just as they do now versus 2016. So let’s leave things there. And going from high politics and intense moral issues to practical politics at the local level, Jamelle, we wanted you to do a recommendation this week. And it’s specific to a great political victory that you personally just won. [JAMELLE LAUGHS] So maybe you could tell our listeners about that victory.
Sure. So I live in Charlottesville, Virginia, which is a city that has a city manager type government, meaning that there is a mayor, but the mayor is elected from the city council and that the day-to-day operation the city is handled by the city manager. To aid the city manager and the council in the day-to-day operation of the city, there are a variety of panels and commissions on which residents can sit. One of those panels, it’s the parking advisory panel, it cannot approve or reject. Parking advisory panel only offers recommendations. But often, those recommendations have been, at least for the parking panel in the direction of more parking wherever possible, which is a problem in a city like Charlottesville which is small, it’s land constrained, it has a housing affordability crisis. And there is a lot of essentially vacant land around the area that’s downtown that’s occupied by surface parking lots, by parking structures, that precludes building other housing or building commercial space. Last year or two years ago, the parking advisory panel recommended against taking away several parking spots on one of the downtown thoroughfares to make room for an expanded bike lane. And after that, I decided that next time there were openings in the parking advisory panel, I would apply for one and hope to get put on. And that’s pretty much what happened.
So has the power gone to your head? That’s my question.
The power’s not gone to my head. I do have—
Are you walking around downtown with, like, a spray can, like painting huge X’s over parking lots you don’t like? So, Jamelle, one more time in one sentence, what’s your recommendation?
My recommendation is to get involved in your local government.
Fantastic. Jamelle, thank you so much for joining us. It was a pleasure, as always.
Thank you for having me.
Thanks, Jamelle. [MUSIC PLAYING]
And that’s our show this week. Thank you for listening. If you have an election question you want to hear us debate, share it with us in a voicemail by calling 347-915-4324. You can also email us at firstname.lastname@example.org. The Argument is a production of The New York Times Opinion section. Our team includes Alison Bruzek, Isaac Jones, Phoebe Lett, Paula Szuchman, Vishakha Darbha, Kate Sinclair, and Kathy Tu. We’ll see you after the first presidential debate next week.
Right. And I think that that’s why Republicans— sorry. One second. My cat is strangling herself with — in a bag.