Look closely, kids, to find the references to abortion and gay marriage.

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Replacing a Justice Shouldn't Be So Excruciating

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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Longtime readers will easily guess that I generally prefer the jurisprudence of Antonin Scalia to that of, say, Ruth Bader Ginsburg, and that I would prefer the next Supreme Court justice be more like him than like her. But I would also prefer to live in a country where the fate of the republic did not turn quite so sharply on which of nine unelected lawyers happens to die in a given year.

At this point, however, it cannot be otherwise; the battle we are about to enter was foreordained years ago. We can argue about who started this escalating tit-for-tat war over the court, but who cares? Both sides have been down in the trenches for some years now, and both sides fight dirty whenever they think it’s to their advantage. The stakes are too high to do otherwise.

If we want to stop this before the next Pyrrhic victory, the answer is not to whine about how awful the other party is; it’s to lower the stakes. Far too many people on every side want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators. Why bother tediously lobbying senators and representatives, when you can simply win the White House, appoint a few judges, and get them to transform your most ardent desires into untouchable rights?

I remember having an argument over a controversial issue a few years back, in which I offered the opinion that a goal was quite desirable, and yet, probably not really mandated by the Constitution. It doesn’t matter what the issue was; you may insert your own favorite here, from abortion rights to drug legalization. Because whatever the issue is, there are people making exactly the same sort of bad argument about the law.

The fellow arguing with me offered the opinion that this issue was really, really important. I agreed, and repeated that it was still probably not really mandated by the Constitution. He explained, more slowly and loudly, how important this issue was. I said yes, but that doesn’t mean that it’s in the Constitution. The world is filled with many splendid ideas which are not covered by the Constitution. The chap I was arguing with looked befuddled, and then proceeded to reiterate how important this issue was. He was, I must point out, a Harvard-educated lawyer.

Now, we might have a long and I’m sure very spirited debate about various originalist or “living constitution” theories of constitutional interpretation. The point is that we didn’t. For most people, “constitutional right” simply doesn’t describe anything at all beyond “things I think are so important that my political opponents should be unilaterally disarmed.” The purpose of electing a president is therefore, in large part, the effort to stuff the court with enough judges to force your idea of what’s important on the other 300 million people with whom you share a country. The problem is that many of them disagree, and are eager to do their own stuffing, while simultaneously blocking yours.

Running more and more issues through the appellate courts, rather than struggling through the legislative process, has two terrible effects. First, it federalizes more and more issues, in an era when values and ideologies tend to be sharply partisan and geographically divided. If you were a pro-lifer in Alabama, you probably wouldn't get on a bus to Albany to protest New Yorkers' more liberal abortion laws. But when federal courts decided that abortion law would be substantially the same everywhere in the country, proponents of abortion rights and opponents of abortion became locked in a battle over the court that sets the rules. (And also still squabble at state and local levels, of course.)

The second problem is that by putting any issue beyond legislative debate, deeming it a decision for judges alone, you leave a large number of Americans who are passionate on certain issues feeling like they have no democratic recourse. It's a recipe for extreme reactions, like voting for Donald Trump or worse.

Of course, when matters of such great importance are at stake, it’s very tempting to do an end run around politics, and avoid those unsatisfying compromises, by putting the question in the hands of unelected people who are, by design, removed from the passions of democracy and representative government. They can therefore rule much more sweepingly than legislators would.

But this doesn’t fix the political problem. It only moves it to the question of how the justices are picked, a question that is about to catapult our political system into a new, and more dangerous, level of crisis. For if you leave people no way to work through the system, they are apt to start working against it instead.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net