Let's Recognize That We've Been Making Laws the Stupid Way

And that the smartening is not yet upon us

I’m used to partisan flip-flopping; I know that blocking a nominee is a noble stand when you do it but “obstruction” when the other side does it. Even so, the recent reversal in attitudes towards the judicial branch has been stunning. For all my life, “activist judges” have been a conservative villain on par with “ivory tower intellectuals” and “do-nothing bureaucrats” (I like to imagine these villains hanging out together in a Batman-style universe). Meanwhile, liberals saw the courts as basically the Jedi High Council, with Ruth Bader Ginsburg being like Yoda, but more kick-ass. Now, views have suddenly reversed. That’s mostly because of Dobbs, but not entirely; last month, there was liberal outrage when the travel mask mandate was lifted by a judge who was appointed at age 32. And most of me thinks “It’s not fair to assess a judge by her age,” though part of me thinks “Yes, obviously shut up, Judge Twerp; you’re in your 30s, you should be hanging out in a faux-industrial urban beer garden realizing that your ‘fun’ friend is actually an alcoholic, not making decisions for 330 million people.”

I was never really comfortable with the outsized role judges play in our process. Conservatives had a point: A judge’s role is to interpret the law, not to make it. That’s why judicial nominees always say some version of “I just call balls and strikes”. It’s a good metaphor, partly because it reminds people how much they hate umpires. Umpires suck; they should absolutely not be given more power and should maybe be stung to death by bees. The more power you give to unaccountable decision-makers, the higher the likelihood that you’ll end up like this:

Most people agree that judges shouldn’t make laws. And yet, judges play an enormous role in our lawmaking process. Every major issue of our time — abortion, immigration, LGBT rights, gun control, health care, climate change — is settled in the courts at least as much as it is in the legislature. We nominally agree that we shouldn’t do things this way, and then we keep doing things this way, like a couple who re-hires the babysitter who gave their kid a hit off her vape pen because she happens to live nearby.

How did we get here? As I see it, three things happened. First, both sides came to see the courts as a legitimate means for pursuing their goals. Second, the country became highly polarized. Third, use of the filibuster became normalized. As Ezra Klein has pointed out, the second and third things combine to make it basically impossible to govern; you’ll get 60 Senate votes on a major issue the same day that Henry Kissinger sweeps the Kid’s Choice Awards. The lawmaking process described in the Constitution is basically blocked; in fact, arguably the biggest thing a party wins when they control the White House and the Senate is the power to populate the judicial branch, i.e. the branch that really matters.

The fact that our legislative process is gridlocked causes people to seek other avenues for change. Executive orders — a weird fiat power in which the president simply declares something to be so, like they’re a monarch in a Disney movie — are used for big issues like immigration and climate change. Policy can be enacted through the bureaucracy, as it was (briefly) with Obama’s Clean Power Plan and Trump’s family separation policy. The United States no longer signs treaties, because treaties require a 2/3 majority ratification vote in the Senate; instead, we use “executive agreements", which is the most transparent semantic dodge since “surcharges” became “convenience fees”. Both sides use these work-arounds, and none are clearly illegitimate; all have some basis in the law. And who decides which tactics are authoritarian overreach and which are impish hijinks? The courts do! You can sidestep the legislative branch but the judicial branch has its finger in every pie.

These days, the quickest path to getting what you want is through the courts. Liberals realized this first, and they scored some major victories during the court’s liberal ‘60s phase, in which they experimented with some wild new judicial theories and also, one assumes, weapons-grade psychedelics and some freaky hippie sex stuff. Conservatives yelled “that’s not fair!” for a while before deciding “actually, let’s also do that” and committing themselves to retaking the courts. It was a decades-long project, and social conservatives sacrificed everything in pursuit of their goal, most notably throwing their support behind an amoral thug whose philandering was only limited by the occasional porn star who would freeze him out by watching “Shark Week” in a restaurant instead of having sex. It was a disgusting, degrading endeavor, kind of like Tim Robbins crawling through a sewer pipe in The Shawshank Redemption, but you have to admit that at this moment in time, it looks awfully strategically smart.

Social conservatives right now.

But this is no way to run a country. Consider how our government works in practice. We elect two houses of Congress. The House is laughably gerrymandered; in most districts, voters are about as relevant as a floppy disk drive, and the real battles happen in — say it with me! — the courts. The Senate reflects our insanely drawn states, one of which has an economy larger than the UK and nine of which have more cows than people. The aforementioned polarization-plus-filibuster combination makes passing any law that can’t be crammed through reconciliation about as likely as a gritty reboot of Harry and the Hendersons. The president is elected through a process that makes Penn Station seem well-designed and efficient, and the best defense of that system is that it hardly ever elects the wrong person. Though since I’ve been voting, it’s happened two times out of six.

These two branches — which sort of, sometimes represent the people’s will — collaborate to pick judges who will, in truth, make most of our big decisions. Though, there’s another major player in our process: the icy hand of the grim reaper. Death plays a major role in shaping our courts, and one thing you get when you win the presidency is a ticket in the macabre lottery to be in the right place at the right time when somebody croaks. It’s a ghoulish system that seems like something dreamed up by Stephen King, and there’s a lot of discussion about how the Founders were racist and elitist but probably not enough about how they were maybe also just a sick bunch of fucks.

Put this all together: The signal from the voters gets distorted, then distorted again, and again, and again until it’s unrecognizable. Of course we live in a country that’s split 50/50 but that ended up with a 67/33 court, and of course that court produced a decision that Americans oppose by a nearly two-to-one margin. The key node in our lawmaking apparatus is several steps removed from voters and isolated from their judgment. The best people can do is to cast a vote and hope that it rattles through the system and somehow produces the result they were hoping for.

I don’t think that most judges set out to make laws. I think that most of them really do want to call balls and strikes, but the key questions they’re presented with are so vague that personal opinion becomes a decisive factor. Consider the principle of stare decisis, which says that you should always defer to precedent…except for sometimes. Federalism is similar: We should defer to the states, except for the exceptions. Cases are littered with subjective words and phrases like “extreme”, “exceptional”, “unusual”, “narrowly tailored”, “clear and present danger” — the room for interpretation is unfathomably vast. And I haven’t even mentioned Potter Stewart’s famous quip about pornography: “I couldn’t describe it, but I know it when I ejaculate to it.”

To be overly reliant on those decisions is a bad system. It’s an unrepresentative system. And to be fair, it doesn’t seem to be the system the Founders wanted: Congress is supposed to make laws. Judicial review isn’t even mentioned in the Constitution, and though I’m not ready to join those who want to get rid of it, we should recognize that only in 1803 did the Court — in a split decision — say “Yes, we can do the thing that we’re about to do.” The court’s dominance is relatively new and largely the product of our legislature being about as useful as a bowl full of pig dicks.

So, what to do? Well, obviously: Get rid of the filibuster. Have I said that before? Ah yes: I’ve complained about it constantly, including in my old job. We’re a divided society and our government has many checks and balances; we can’t afford a new (and it is new), made-up one. This isn’t a partisan thing; I’ve been against the filibuster for 20 years. In 2005, I was upset when my newly-elected Senator from Illinois — I believe his name was Borat O’Blumpkin — joined a group opposed to filibuster reform. I have always opposed the filibuster; I will always oppose the filibuster. If the Senate one day summons 59 votes for the Throw Jeff Maurer Into a Grain Thresher Act, my position will be that 59 votes is a clear majority, absolutely scrap the filibuster and let me know if I need to remove my shoes before I go into the thresher.

We could also make Congress a bit more representative by having Congressional districts drawn by independent bodies. This wouldn’t be a perfect solution, but since our current method is the worst one conceivable, it would be an upgrade. We should also impose 18 year term limits on Supreme Court seats, which would make appointments less random, and it would reduce the incentive to appoint whippersnapper judges who should be Instagramming their breakfast and buying the first non-Ikea furniture of their lives instead of making decisions for the country. The Senate’s Republican skew could be lessened a bit in the short term by granting statehood to DC and Puerto Rico,¹ which I hesitate to mention, because I support statehood for principled reasons, not practical ones. I would support statehood even if DC and Puerto Rico were ruby red, and based on Democrats’ recent polling among Hispanic voters, that might happen in Puerto Rico by about Labor Day.

These changes would make Congress a bit more representative and a bit more functional. They wouldn’t be game-changers — you wouldn’t need to re-program the DJ 3000 — but they’d help. Hopefully, Congress would feel a bit less like the place where progress goes to die, which could reduce the impulse to turn to the judicial branch. We’d also benefit from a society-wide recognition that we’re not supposed to do things this way; most big issues are not supposed to be settled in court. Courts should fuel our daytime TV lineup and make people think twice about getting divorced, not be a Council of Sages that you turn to when you can’t get your way in the legislature.

You might find it strange to hear a liberal making this argument. I get that; not long ago, this type of article might appear in the National Review (uh, except for the “bowl full of pig dicks” part). I’ll ask to you take my word for it that I’ve felt this way for a while, though I understand if you don’t. I hope that the reshuffling of opinions in the wake of Dobbs creates at least a brief moment in which both parties recognize that we’ve become too accustomed to legislation through litigation. Judges should return to their natural role of calling balls and strikes, and we should return to our natural role of bitching non-stop about their calls but not having the whole ballgame decided by their decisions.

1. I need to add this caveat: DC and Puerto Rico should be granted statehood if they want to become states. DC definitely wants to become a state, but Puerto Rico’s preference is a bit ambiguous.