The best argument for holding Justice Ginsburg’s SCOTUS seat until after the presidential inauguration comes from Alexander Solzhenitsyn’s Harvard speech in which he assailed America’s tendency toward “legalism.” By “legalism” Solzhenitsyn meant a characteristically American tendency to think that as long as the letter of the law has been observed, all is well.

And, to be sure, there is a legalistic case for filling the seat, as Charles Cooke observed at National Review. The president nominates someone. The Senate chooses what to do next. Thus on the legalistic reading of the case, the system worked in 2016 with Merrick Garland and it can work again in 2020 with whoever Trump puts forward.

The difficulty this raises is precisely the same as the difficulty Solzhenitsyn spoke of in his Harvard address:

But a society with no other scale than the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses. And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure.

Solzhenitsyn’s concern is that legalism creates a kind of glass ceiling for our life together, tacitly eliminating the possibility of a true spirit of brotherhood and replacing it with a coercively secured social detente premised on a narrow reading of how law works in society. The difficulty is that such a system cannot actually cultivate even a basic social trust between citizens, let alone the kind of mutuality and shared concern with one another’s flourishing that actually makes life together possible and even delightful.

This is the problem that ought to occupy everyone concerned with American politics right now: How do we cultivate social trust? Trust is the basis for all the more positive social goods that can follow from it in a healthy, coherent community. What is alarming about the Trump-McConnell decision to fill the seat before the election is that it seems to be utterly indifferent to this question. The only concern of the McConnell GOP is securing power. It begins with the assumption that actual trust existing across political disagreements is not possible or desirable and so all that remains is making sure your side of the divide possesses power.

The Democrats have, increasingly, responded to this line in kind, a development which can be traced out over the eight years of the Obama administration, which began with attempts to work across party lines and ended with an increasingly aggressive executive branch that worked independently of the other branches of government:

In such a situation, escalation is inevitable as both parties become more and more desperate to secure power—thus the GOP continues to double-down on anti-democratic methods of maintaining power while the Democrats propose radical reforms, some of which (such as abolishing the electoral college and court-packing) would be departures from nearly 250 years of precedent.

Such a situation cannot continue forever. And one way of slowing or even ending the conflict is for one side to take a step to deescalate, which makes it appear less costly for the other side to also deescalate. Holding the seat until the inauguration would be such a step from the GOP. That is the best case for holding the seat.

That said, it is an argument that may rely on a too-narrow reading of our political order. Holding the seat might deescalate the current situation, particularly given the rather strong words that many of the Republican Senators who will be voting on the nominee used in 2016 when addressing a similar situation. But it does not address the underlying problem, which is that our system has worked itself out in such a way that the Supreme Court amounts to a court of Ivy League-educated philosopher kings who rule by fiat, a system which protects our unstable, splintering meritocratic social order.

This current system has been tolerated mostly because it consists of four obvious conservatives, four obvious liberals, and a swing voter appointed by a Republican president who gives conservatives what they want on voting rights and religious liberty and gives liberals what they want on abortion and marriage. Even so, the system has not been sufficient to prevent us from entering a state of cold civil war, so why would we want to preserve it?

For all the sturm und drang of the Trump years, Trump’s first two appointments have not obviously disrupted that system. The Gorsuch-Kavanaugh court gave transgender activists a notable win on the Bostock ruling while handing religious liberty advocates a major win on Guadelupe, all of which feels extremely familiar. We may have spent the past four years getting dramatically angrier and more divided but the underlying system is basically the same. Given that, would it be such a tragedy if Trump filled Ginsburg’s seat with a conservative, dramatically shifted the balance of the court, and forced us to reckon with our unsustainable detente in a more real and lasting way?

This is Ross Douthat’s argument: Filling the seat forces the Democrats to get serious about actual reform instead of allowing reform to remain mostly hypothetical following Biden appointing a Ginsburg clone to the bench, thereby maintaining the court’s balance.

My sympathies remain with the side of deescalation simply because I lack confidence that our nation’s response to filling the seat would be limited to national Democrats getting serious about political reform. We have already spent a summer observing progressives rioting in major cities while well-armed vigilante conservatives stand opposite them. What we are forced to balance is the stress our society can presently endure with the stress required to actually disrupt an unsustainable political regime. Our crisis is that the stress we can endure as a society may be insufficient for political reform and the stress sufficient for political reform could tear the nation apart.

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Posted by Jake Meador

Jake Meador is the editor-in-chief of Mere Orthodoxy and author of "In Search of the Common Good: Christian Fidelity in a Fractured World." He is a 2010 graduate of the University of Nebraska-Lincoln where he studied English and History. He lives in Lincoln, NE with his wife Joie, their daughter Davy Joy, and sons Wendell, Austin, and Ambrose. Jake's writing has appeared in Commonweal, Christianity Today, Fare Forward, the University Bookman, Books & Culture, First Things, National Review, Front Porch Republic, and The Run of Play.

  • igbusf

    Worth noting that there’s some real energy on the left around some of the ideas you advance. For conservatives concerned about the extreme power of our “juristocracy,” this seems like an opportune moment to partner with the left and pursue court reform in to make the judiciary more small-d democratic.
    See here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032
    Summarized here: https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/

  • Several problems with the deescalation argument here.

    First, the logic of the argument, to whatever extent it works, applies equally to Democrats opposition to filling the seat. Further, it would apply to Democrats desiring to fill the seat after the election if they won in November. So why should a Republican senator take that you’ve demonstrated that the seat should not be filled as opposed to a Democratic senator taking that you’ve demonstrated that the seat should be filled, especially given the prima facie right (not to mention duty to the electorate) of the President and Senate to fill the seat?

    Second, to claim that “What is alarming about the Trump-McConnell decision to fill the seat before the election is that it seems to be utterly indifferent to this question. The only concern of the McConnell GOP is securing power…” is not “steel manning” the debate, it’s straw-manning the debate! There is a tangle of other issues here: like the fact that government by its very nature is about securing power for one’s theory of justice. And, thus, that any politically engaged citizen in a democracy is accurately described as attempting to “secure power.” But moving along…

    Third, the deescalation argument only has traction if it’s the case that the only (or best) way to establish social trust is to forego the normal political processes expected of the government. Yet this is extremely dubious. If there are other ways of both securing social trust and fulfilling one’s political obligations then there’s no argument to be made from securing one at the expense of the other.

    This should lead us to more carefully consider exactly where the trust has been broken. While the trust has surely broken by both sides in a thousand different ways over many decades, the most immediate breaking-of-trust relevant here is in the disingenuous arguments set forth by Republicans in 2016 regarding Merrick Garland and not Ginsburg per se.

    But it was obvious to both sides in 2016 that the arguments of Republicans and the arguments of Democrats surrounding Garland were disingenuous. This is why Democrats started parroting arguments that they rejected by Republicans in 2016 on the night of September 18th, 2020, before McConnell had publicly expressed intentions to fill the Ginsburg seat. And then vice versa. There was a mutual breaking of trust in 2016 from the bad faith arguments of both sides and this was just one of many other instances.

    Regarding Ginsburg, we see several of the same bad-faith arguments that circulated for Garland in 2016, only the parties espousing the arguments have switched. But the simple act of fulfilling one’s political duties (e.g., deciding to nominate or not and deciding to confirm or not) are not in themselves trust-breaking acts.

    Thus, Republicans and Democrats can both work towards social trust and seek to fulfill or oppose the fulfilling of the Ginsburg seat by simply arguing in good faith and admitting where they were fibbing in the past. Neither Democrats nor Republicans need to lay aside the resources and means which have been entrusted to them by the electorate in order to secure social trust. And this suggest, perhaps, a final problem with the deescalation argument:

    Solzhenitsyn’s point was that we need more than cold legal adherence, it was not that social trust might require less than utilizing the legal and political means we entrust to our elected officials. At least that argument is not evident in the sentences you quote.

  • Pingback: Paying Respect to Ruth Bader Ginsburg (5 min. read) – Evangelosophy()

  • OMG

    The 1973 Supreme Court decision for abortion epitomized legalism. That decision thrust legislation upon the country while denying the country its right to self determination. That decision denied truth and the common good. The author rightly says: “Trust is the basis for all the more positive social goods that can follow from it in a healthy, coherent community.” Where is trust when one segment of the population declares it legal to kill another segment of the population?

    The timing of Barrett’s nomination reflects the serendipitous nature of circumstance. The claim that it is about securing power is balderdash. It is about justice. Justice does not require any man-made legal system. As a virtue, it will win out.