An “Editor’s Blog” post from Josh Marshal of TPM
I think a lot about resilience. It’s actually an underlying concern that forms a lot of my political opinions. Not about policy, though perhaps that too in some way, but politics in the sense of elections and how coalitions and individuals operate politically, how they sustain themselves. I thought about this when I heard these new recordings of Sam Alito, telling us in his own words what we’ve been learning in recent years from his actions. It was interesting to contrast Alito’s remarks with those from the parallel recordings of John Roberts. Roberts at least said the right things when pushed on these questions about polarization and the role of justices and the Court. I doubt the difference in the two responses is just about Roberts being more circumspect. While being part of the same corruption as Alito, he is at least concerned with public perceptions of the Court’s legitimacy and the historical reputation of the Court under his chief justiceship. He is concerned with the constraint of legitimacy, which is defined by public perceptions of the Court. It’s a low bar, but still a quite significant one.
The thing with Sam Alito is that he doesn’t give a fuck. He is a seventy-something Fox News watcher and religious fundamentalist who happens to find himself in a position of immense and almost incomparable power over all of American society and he’s going to take that power to the limit to advance his own political preferences. He’s not even going to go through the motions of pretending that’s not the case. You don’t like it? Well, tough shit. You should have thought of that in 2006. And he’s not the only one in this mode. Thomas is right there with him. The remaining four are functionally in the same place. They’re just more attuned to appearances and willing to pass up at least a few goodies in the interest of maintaining some patina of legitimacy and thus entrenching and confirming their illegitimate power.
So, resilience.
A few days ago I was watching a TV discussion with one of my favorite Court watchers and analysts who gave a sort of mea culpa of sorts for too long continuing to approach the analytic work as something to be done within the margins of the opinions the Court releases and the jurisprudences the justices purport to follow in arriving at those conclusions. What is required of course to cover a Court like this is not jurisprudential analysis but flag searches, investigative reporting, the whole panoply of tools appropriate to covering corruption in public life.
This is a very unfortunate place to be. And we will be here for a significant period of time. People get overwhelmed. The tools to restrain a runaway Court are jurisdiction-stripping, expanding the size of the Court, creating term-limits for justices. But none of these seem possible immediately. And if Trump wins the election he might get the chance either to reinforce his majority by nominating replacements for some of the Court’s older members or even expanding it. Not great.
This requires acclimating ourselves to something we will likely be at for a very long time. When I see some new expose about Alito or Thomas I still see a lot of people who say or at least profess great disappointment. It damages the legitimacy of the Court. My reaction is totally different. I think it’s great. Because the biggest challenge we face is that inertial power of people’s respect for the institution as it used to exist. Yes, it’s bad that we’ve gotten to this point, that we are in the thrall of a thoroughly corrupt institution. But it is corrupt. And people seeing that is a good thing. It is a prerequisite requirement for any possible change or reform.
We need to get our game faces on, realize where we are, identify the paths to eliminating the corruption, be running against this corruption in every election, making the case about the Court’s corruption and realizing it will take some time to get things back to where they need to be. Let’s do it.
I have a similar thought about the not unrelated possibility of a Trump win in November. I hear a lot that if Trump wins we will lose our democracy or democracy ends. I agree on the stakes. I may see them in more dire terms than some of those who use this formulation. But this isn’t a realistic way of understanding where we are. If we lose it, we will have to get to work on getting it back. And it’s too binary a formulation anyway. If Trump wins the election and especially if he controls Congress we will enter a period of profound democratic crisis driven by the unique powers of the American presidency and an American President trying to overthrow or more accurately degrade the American public from within. What’s our plan for that? We are by all the evidence living in an era of global history in which the world’s democracies are less arranged around left and right and more between populist authoritarianism and parties embracing civic democracy. I’m not saying left and right no longer matter. But we can see that in most of Europe, and clearly in the U.S. — that our older, policy-driven nodes of left and right are fading in significance when faced with this new opposition. This state of affairs doesn’t seem likely to end any time soon and it would be naive to think that populist authoritarians will never win another national election. So what’s the plan for that?
I’m obviously sketching out some unpleasant scenarios. But it feeds resilience to know that history doesn’t end. There’s a next day even after bad things happen. It feeds resilience to have a plan. That’s not only because it’s better to have a plan than to be unprepared but because it spurs and sustains resilience. And that’s the proper way to live in the world.
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Written by Josh Marshall, the founder and editor of Talking Points Memo. If you are not reading TPM, you should start. And if you’re not a member, you should become one. TPM is a solid source of reporting, analysis, and info, and is one of my absolute go-to resources.
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