Do We Need To Worry About Violence Against the Court?

I think we do -- and we should respond not just with heavier security but with reform

After the attempted assassination of Supreme Court Justice Brett Kavanaugh, and the successful assassination of a retired Wisconsin judge, it is entirely appropriate that we take more seriously the safety of our judges and of the judicial system in general. The police presence around the Supreme Court has been bolstered in anticipation of protests around high-profile decisions on abortion and guns, which are expected this week, and I’m glad of it.

But I’m also worried. The threat of violence and the security measures implemented in response to those threats drive a wedge between the people and their servants in government, which is what all the branches ultimately are, the judiciary very much included. The judiciary is supposed to be impartial, but that’s because we’re supposed to value that impartiality as an essential and constitutive aspect of justice as such. At the point that we no longer do, law feels like force, and when that happens violence only becomes more thinkable, not less. Security is no substitute for legitimacy, and over time may even, if it creates a sense of isolation and separation, actually undermine it further.

What, then, is to be done? Inasmuch as these recent attacks on judicial figures are part of the Great Derangement juddering through the American population, we’re back to wondering why exactly so many people seem to have lost their minds, and what we might be able to do to bring antisocial behavior more under control. (That’s a topic that deserves its own post; my instinctive inclination has been to blame COVID and the social restrictions that were impose to contain the virus for the increase in violence across American life, because it’s a phenomenon that has crossed demographic, political and geographic lines. But it doesn’t seem to be replicated abroad in other countries that experienced even tougher COVID restrictions, which presents a very big problem for my preferred theory.) In the meantime, if this violence and threatened violence is essentially random then it has no inherent political implications. We can handle it with heavier security while still being cognizant of the risks of a security-first approach that I described above.

I’m not sure, though, that it is entirely random. On both sides of the aisle, there is increasing acceptance of the idea that our political institutions are illegitimate, which while it isn’t in itself a call to violence effectively disarms the strongest argument against violence. This is most obvious on the Republican side, something the ongoing January 6th hearings have provided a powerful reminder of. A huge percentage of the GOP rank and file believe that the last election was stolen and therefore that the current government is illegitimate, and while only a tiny minority participated in violence in response on that fatal day, it’s difficult in practice to convincingly disavow that response without forcefully rejecting the premise that justified it. Not only has the party leadership mostly failed to do that, but a substantial fraction—most especially the former president—have done precisely the opposite.

But the rhetoric on the left side of the aisle with regards to the courts specifically has been extremely cavalier in suggesting that the Supreme Court in particular is no longer legitimate, and that certain decisions it might make would be in some sense inherently counter-democratic. And while I’m not going to nut-pick and compare the occasional lone wolf lunatic to a mass movement, there’s far more widespread acceptance of things like picketing Supreme Court Justices’ homes, which in and of itself undermines the legitimacy of their decisions by suggesting that they ought to be influenced by such protests in making their decisions, which, if they are to do their jobs properly, they should not. And that, in turn, makes it harder to refute the case for violence.

At this point, someone will undoubtedly say that if the Supreme Court wants to play super-legislature then they should reap the whirlwind of political protest. But this is an argument for using the legislature to clip the Supreme Court’s wings so that it is more deferential to the political branches. That might indeed make a difference in gun rights cases, for example, where the Court looks increasingly eager to interfere with state efforts to restrict gun ownership. But on abortion—the most hot-button issue of all—the razor cuts the other way, as a reversal of Roe v. Wade would return the question of abortion to the states to settle democratically. To define such a ruling as undemocratic twists the meaning of the word beyond recognition. It defines the legitimacy of the process by its result, which is in effect an attack on legitimacy as such.

So I think a shift among Democrats away from excessive veneration of the Court and towards a recognition that all rights are ultimately grounded in popular support would be salutary, and a number of people on the left have started to make that shift. But in another sense, this shift might be insufficient. The Supreme Court is distinctly vulnerable to transformation through violence, and it behooves both parties, and both conservatives and liberals, to take heed of that fact, and join forces to enact reforms that reduce that vulnerability before someone—most likely a lone nutter, but so what?—creates a political crisis through successful assassination.

Consider that we have already been through such a crisis because of two untimely deaths. Justice Antonin Scalia’s death gave President Obama the chance to move the Court decisively to the left. With his characteristic moderation, he declined to do what President George H. W. Bush did in replacing Justice Thurgood Marshall, and appointed a moderate liberal rather than a left-wing firebrand, but from the perspective of Republicans that availed him nothing; they didn’t want a moderate and deferential liberal Court but a Court that would overturn Roe. So Garland was denied a hearing and the open seat became a key issue in the general election, an issue that likely energized otherwise troubled Republican voters to support Trump rather than defect to a protest candidate. The politics of the Court were then further decisive in augmenting the GOP’s Senate majority in the midterm elections, such that when Justice Ruth Bader Ginsburg’s demise gave Trump the opportunity to appoint a replacement who shifted the Court decisively to the right, the Democrats were in no position to do to him what the GOP had done to them in identical circumstances.

As a result, a roughly 50-50 nation has a Court that tilts 2-1 Republican. Responding to that anomaly by running against the Court would be a healthy political response. So would running to change the Court, much as the GOP has done for the past generation. But given the long timeline and uncertain prospects to effect the latter, the temptation to “fix” it with a couple of well-placed bullets or bombs is going to be hard for fanatics and lunatics to resist as long as it remains possible.

Which is why both parties should come together on reforms to make it impossible. The quasi-monarchical character of the Supreme Court is out of alignment not only with its prominence and power but with its increasingly ideological character. And we’ve seen this movie before. The original design of the presidency installed the runner-up in the election as Vice President. This only made sense if the president was a nonpartisan figure, which ceased to be the case as soon as George Washington left the scene. Absent the twelfth amendment, the temptation to use impeachment or assassination to change the result of a presidential election would have resulted in profound instability; as it was, the assassination of President Lincoln created precisely the crisis the amendment was intended to prevent. We’re arguably in an analogous place now with the Supreme Court, where our procedure for appointing and confirming justices only makes sense when the Court is relatively non-ideological. We need to change it.

That change could look something like the many proposals floated early in the Trump years whereby terms and singular rather than lifetime appointments, such that every presidential term would get two nominations, one in year one and one in year three, with appointments in the wake of early deaths or retirements temporary, modeled on something like the way Senate seats are handled in similar circumstances. Whatever the details of the reform, though, the point would be not to alter the current balance of the Court but to reduce the stakes of any individual vacancy.

Isn’t such a reform a pipe dream in the current circumstances of hyper-polarization? I don’t think so. Lately we’ve seen signs of bipartisan progress on everything from reform of the Electoral Count Act to gun control. As the heady expectations of the early Biden administration have crashed to earth, there’s more desire among some Senate Democrats to accomplish what can be accomplished even if it’s only a fraction of a loaf, and having the wind at their backs seems to have empowered some more moderate elements of the GOP’s own Senate caucus as well. Properly structured, reform wouldn’t threaten the GOP’s short term objectives from their Supreme Court majority (which would surely be a precondition for passing anything), but it might nonetheless empower moderates on the Supreme Court, who would be cognizant of the evanescent nature of any majority.

And if it feels weird to respond to madness with pragmatic wonkery, well, allow me to suggest that such a feeling is itself a sign of how badly pragmatic wonkery is needed.