If Democrats want norms back, they need to take some losses, too

President Biden.
(Image credit: Illustrated | Getty Images, iStock)

In a throwback to the Democrats' days as the party of Andrew Jackson, liberals and their fellow travelers have a solution for the Supreme Court ruling reviving a Trump-era environmental rule they oppose: ignore it.

"If SCOTUS rules on regulation without a hearing or argument, the administration should simply ignore it and state that, in the absence of a normal process judicial review, it sees the court's judgments as advisory but not binding," Will Wilkinson tweeted to some approval on the left. (It is not uncommon for the Supreme Court to respond in this manner to an emergency application.)

The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE
https://cdn.mos.cms.futurecdn.net/flexiimages/jacafc5zvs1692883516.jpg

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Still, this seems pretty shortsighted from people who have spent the last four years decrying the erosion of political norms under former President Donald Trump. Trump could potentially become president again. Do you want him ignoring the judiciary?

The counterargument is that this is necessary to defend against the erosion of norms. But one proposal along these lines shows why that is not very convincing: former President Barack Obama should have just declared nominees judges if they were blocked by Senate Republicans without a hearing, including Merrick Garland.

Even if you believe that Garland should have received a hearing or an up-or-down vote, the Senate majority's constitutional authority to deny confirmation to nominees — and set its own procedures — is clear. Obama divining "implied consent" from Senate inaction and then unilaterally packing the court comes from nowhere.

None of this is to deny creeping illiberalism on the right or Trump's refusal to distinguish between the public interest and his personal ones. But a fair number of progressives want to talk about norms while rejecting, for reasons both principled and opportunistic, the existing constitutional order. The objections rooted in concerns about Republican power can easily backfire on liberals as political conditions change — or when Trump declares, "John Roberts has made his decision; now let him enforce it."

W. James Antle III

W. James Antle III is the politics editor of the Washington Examiner, the former editor of The American Conservative, and author of Devouring Freedom: Can Big Government Ever Be Stopped?.