The Corner

Law & the Courts

The Partisan Majoritarianism of Jamelle Bouie’s Court-Packing Argument

A member of Congress holds a copy of the Constitution in Washington, D.C., June 20, 2017. (Kevin Lamarque/Reuters)

Jamelle Bouie of the New York Times has written a brief for federal court-packing — not only of the Supreme Court but of the federal judiciary at large — a column for which it can be said at least that the author is forthright about his intentions, using the verb “pack” four times.

Bouie is a habitually sloppy thinker and writer, and here falls into two of the most common modes of partisan hackery. The first is the argument that his party must “play hardball” (an expression used three times in the course of a 1,100-word column) or “play hardball back,” as Bouie puts it, lest the bad guys on the other team write their partisan “ideological preferences into the constitutional order.” Conservative talk radio is full of people lamenting the unwillingness of Republicans to “play hardball,” and the demand for “hardball” it put forward to justify all manner of abuses and dishonesty. Of course, Republicans in Congress think they are “playing hardball back” on judges and in other contests; on the matter of Merrick Garland, Mitch McConnell was, by his own lights, acting entirely within his constitutional powers but using those powers in a maximalist way in response to the maximalism of Barack Obama. Bouie here is engaged in the New York Times version of shrieking “But they started it!” as a justification for playground misbehavior. Republicans don’t think they started it — not where judges are concerned, anyway. They think Joe Biden and Ted Kennedy started it in October 1987 with the smearing of Robert Bork, which permanently changed the character of Supreme Court confirmation hearings.

Bouie foreswears an intention of trying to “make the courts a vehicle for progressive policy,” and, of course, he does this as he writes of the ways and reasons for making the courts a vehicle for progressive policy. And here is the second common mode of partisan hackery: The belief that one’s own ideological preferences are not ideological preferences at all but self-evident moral truths. This belief can be held either insincerely (and cynically) or sincerely (and stupidly). For Bouie, it seems to be a bit of both.

The point of packing the courts, he writes, is “to make sure elected majorities can govern,” and he cites Supreme Court checks on the grander ambitions of Franklin Roosevelt and Progressive Era as examples of the Court frustrating the those “elected majorities.” He goes on to celebrate Roosevelt’s bullying the Court into submission like some tinpot caudillo. Roosevelt was unable to follow through with packing the Court, but the gambit, Bouie writes, “had the desired effect,” i.e. terrorizing the Court into giving the Roosevelt administration a freer hand.

Bouie complains: “In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy.” Indeed, they have — that is what they are there for. The Constitution and, specifically, the Bill of Rights and subsequent amendments exist explicitly to “put limits on American democracy.” Majorities do not get to overturn freedom of speech or freedom of religion. They do not get to impose slavery or imprison people without trial. There are lots of things majorities do not get to do. This is not some modern conservative invention to frustrate progressives — it is the design of the American constitutional order.

(Strange that you never hear progressives complaining about how Roe vs. Wade “walled off” abortion from majoritarian lawmaking.)

Bouie’s majoritarian ideology is nowhere to be found in the Constitution; in fact, the very structure of American government is designed to frustrate that kind of crass majoritarianism. Hence the Senate (as originally organized) and the presidential veto, both designed as checks on the excessive democratic passions to which the House might be subject; hence the written Constitution and the Bill of Rights, i.e. America’s Great Big List of Important Stuff You Idiots Don’t Get a Vote On, and a Supreme Court constitutionally empowered to police those limits. You can call that an ideology, too, and even conservative ideology, which it is: Properly understood, the principles and philosophy of the Founding are what it is conservatives try to conserve. Unlike Bouie’s sophomoric majoritarianism, that ideology is actually written into our constitutional order. The First Amendment is right there in the Constitution for all to see. Bouie’s dream of “putting the economy under some measure of democratic control” is not.

Putting limits on democracy is what the Constitution is all about. That’s why we have one to begin with, and why we bothered writing it down. The United States is not the United Kingdom, and our parliament is not supreme in the way the British parliament is. You don’t have to agree with that, but to pretend that overturning that order is something other than an exercise in ideology and politics is intellectually dishonest.

It is also civic miseducation. American government makes a lot more sense if you look at it from the point of view of how it was actually designed to function. The Electoral College, for example, mystifies many Americans, who can recite from memory the details of 20 seasons of The Bachelor but who cannot be bothered to understand the basics of how their government is meant to function. The Founders feared mob rule and the domination of factions, and so they made the presidency a prize not for one big national mob but for 50 competing mobs, each with its own preferences and priorities. That is why we do not have direct election of presidents and why the “popular vote” that Bouie writes about is irrelevant. The great defect in our constitutional order is that while the Founders feared the House of Representatives would become the hostage of the democratic passions and their great tribune, those passions (mainly hatreds) have instead attached themselves to the presidency and dominate it. Of course the illiterate majoritarians buck the Electoral College — they are frustrated by it because it exists to frustrate them.

Bouie’s work here is a kind of journalistic malpractice, a willful refusal to deal with the facts of the case as they actually are — a first-order journalistic responsibility that is not removed by placing the column on the opinion page. Bouie doesn’t give much indication that he knows any better or that he is capable of knowing better, and his editors in the Times opinion pages do not seem to be very much interested in having their columnists know better: The intellectual decline of Paul Krugman’s writing under their watch ought to be a cautionary tale.

It would be useful to the functioning of the democracy that Bouie says he cares about if citizens could get an accurate account of the functioning of their government from the nation’s most prestigious newspaper rather than half-baked campaign advice from a sideline partisan. That is not to be. But what is the New York Times for if not that? If its opinion pages are meant to be the newsletter of the Democratic party, it should say so and change its slogan.

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