Talking Points

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

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.)

There is a legitimate debate to be had over the power of the Supreme Court and the scope of judicial review, and it is important for the democratically elected branches to have recourse if the justices overreach. The current 6-3 conservative majority has many liberals who were heretofore pleased with the court's abortion policymaking, for example, questioning the institution's legitimacy.

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."