[First, a programming note: I recorded a podcast last week with Flaming Hydra Maria Bustillos and Joe Macloud last week. We made fun of Alex Karp and Palantir’s goosestepping manifesto. We covered a lot of ground in this one, of the sort that all “Future Now and Then” readers are likely to enjoy. Check it out]
There’s an essay that I started drafting in the before-times (2019), and never got around to finishing. It has been rattling around my head this week, as I watch the Supreme Court once again defenestrate its own institutional legitimacy.
Trump’s first Director of National Intelligence, Joseph Maguire, was testifying before a House committee. There were a lot of questions about foreign election interference, and whether our voting machines were secure from hacking. Some of these questions came from people online who didn’t know anything. But some of them also came from people like Bruce Schneier, who know a lot about digital security and had some very real concerns about vulnerabilities in the system.
Maguire’s response focused on public faith in the validity of our election results. Basically, he said that the intelligence community’s #1 job was to make sure Americans had faith in the election results. I remember hearing that and thinking “no, that’s wrong. What are you doing, man?…”
The intelligence community’s #1 job (circa 2019. Simpler times..) wasn’t to maintain American faith in election results. That’s a communications campaign. You hire people like me and the graduates of my program for stuff like that. The intelligence community’s #1 job should be making sure the election results aren’t interfered with!
I drew up a nifty little four-box chart to illustrate:
Four-box charts are my passion.
From a comms perspective, let me assure you that it is much easier to increase public trust in an institution when that institution is behaving in trustworthy ways. It still takes work — particularly when you’re facing a media system that rewards lies and misinformation — but the work is an order-of-magnitude less challenging when the facts are all on your side.
It’s also a different type of problem. If your elections are compromised, but people don’t believe they are compromised, then you will maintain trust in the institution (at least for awhile. It will not last.). If people believe your elections are compromised, but they aren’t, then you will face social instability (cough, cough, January 6th). It worried younger-me that our Director of National Intelligence seemed more worried on the optics of legitimate elections than on the work of safeguarding electoral legitimacy. The people in positions of authority were absolutely focused on the wrong things.
I bring this all up in light of the Supreme Court invalidating what was left of the Voting Rights Act earlier this week.
I don’t have to tell you this is bad. We all know it’s bad. Louisiana’s Governor has announced he will suspend the state’s primary elections (even though voting has already begun) so he can redraw the district boundaries to benefit Republicans and disenfranchise black people. For the foreseeable future, it’s going to be all-gerrymandered-districts-all-the-time. Elected officials get to pick their voters, not the other way around. (Don Moynihan’s essay on this topic is a must-read)
I also don’t have to tell you it’s unsurprising. The six-member Supreme Court majority is comprised of unabashed partisan operatives, especially when it comes to elections. The Supreme Court’s institutional legitimacy is like a phantom limb. It vanished years ago, but we still carry on as if it was still present. The Roberts Court did what the Roberts Court does. The Court is a partisan institution now.
As Jonathan Ladd notes, this has unavoidable implications for democracy reform proponents. This Supreme Court majority will ignore the plain text of the Constitution in order to achieve its political aims. You can’t fix our political system through legislation if Roberts, Alito, Thomas, Kavanaugh, Gorsuch, and Barrett will just strike down any legislation that disagrees with them.
And yet still there are people-who-should-know-better, insisting that we ought not undermine public faith in the Supreme Court by stating plainly and repeatedly what this Court is doing.
This, I suspect, is for two reasons. One is that there simply aren’t many Supreme Court management strategies that don’t require audacious and unlikely reform efforts. We aren’t going to norms our way or shame our way into Alito and Kavanaugh becoming responsible jurists. They have told us, repeatedly, who they are. They have lifetime tenure, and an axe to grind. It would probably require court-packing or a constitutional amendment, and that’s a tall order with a gerrymandered House and a geriatric Senate stacked with head-in-the-sand traditionalists.
The other reason is social stability. We want the public to have trust in institutions. If the public loses faith in the court system, that’s a precursor to many bad things happening. Here, I drew it up as another four-box chart:
I said four-box charts are my passion. I didn’t say they were my skill.
If it was still 2019, then there would perhaps be room for debate about the objective facts of the judiciary. Citizens United and Shelby County were real bad. But the overall record of Supreme Court behavior left room for some plausible deniability. They were still pretending back then, and they had not yet secured their six-Justice majority.
But what stands out to me is that the problem with the Court is not a comms problem. People have lost faith in the Court because they have paid at least a modicum of attention to what the Court does. This is not a problem that can be messaged or massaged away. And insisting at every turn that we must not undermine public trust in institutions has only contributed to the people in power’s sense that corruption has no consequences.
American Democracy will not be saved by a landslide election in 2026. A landslide election in 2026 (if it happens) will only be a precursor to the incredibly hard, necessary work of structural democracy reform. It will, at best, be a window of opportunity.
The same is true of 2028. It would be so nice if all that we needed to recover from Trumpism was to win two consecutive elections and then get back to normal. But that’s a fantasy. We will not fantasize ourselves out of this state of affairs.
So I find myself, on weeks like this one, thinking about phantom limbs and the work it takes to adjust to new realities. I find myself thinking about multi-member districts in the House, radically restructuring the Senate, and turning the Supreme Court into a rotating panel of judges — all of whom have term limits and ethics laws with real teeth. I think about wealth taxes and rewriting all the laws that have given the super-wealthy immunity from the rules that govern the rest of society.
These are all impossible dreams in the system that we have today. I cannot draw a straight line from where we are today to where we would need to be. But the system we have today is awash in corruption, and absolutely everyone knows it. None of this can be solved through optimistic messaging and can-do spirit. We might as well start thinking about what we replace it with, because the center, as-is, cannot hold much longer.