Political Health

Strengthening Democracy’s “Gut Health”

Our politics is a battle of immune systems

A human lymphocyte cell. Source: commons.wikimedia.org Public Domain

Written by Joel Ombry and published in Medium.com

Strengthening Democracy’s “Gut Health”

Our politics is a battle of immune systems

A human lymphocyte cell. Source: commons.wikimedia.org Public Domain

One way I’ve been thinking about our current politics lately is as a battle of immune systems.

On the one hand, we have our democratic system that is designed with a strong anti-authoritarian immune system. Rebelling from a king, the founders designed the system to entrust governing power with representatives of the people and to separate that power among different branches of government with different governing functions. They codified citizens’ rights in a written constitution and set up a court system to peacefully resolve disputes.

On the other hand, we have MAGA which is designed to protect and promote the interests of former President Trump. I’m moving away from using the terms “conservative” or “Republican” to describe Trump supporters as it’s not descriptive of the current reality. Genuine conservatives exist, as do members of the Republican party that are faithful to that organization’s founding values and ideological principles. However, the current elected class and most media on the right is a cult of personality, where position in the power hierarchy is determined by one’s relationship to one person— it’s about Trump and Trump alone. They are MAGA.

Daily Beast columnist David Rothkopf’s characterization of MAGA in the wake of Liz Cheney’s loss in the recent GOP Wyoming primary, planted the notion of an immune system in my mind.

Source: Twitter.com

While I agree with Rothkopf that the MAGA immune system is effective at isolating and destroying truth-tellers within the GOP, the potential scope of that system is larger, and more dangerous than he suggests.

Liz Cheney’s loss marks the maturation of this immune response within the Republican Party, but it’s still an open question as to whether it will triumph over our democracy’s anti-authoritarian immune system.

The key is attacking accountability institutions

The true danger of the MAGA immune system is that it not only targets dissent within its ranks, it also targets the accountability mechanisms our country has in place against authoritarianism. Like our body’s immune system protects our organs and other systems from disease, our democracy’s laws, and political norms protect our institutions from corruption for personal and political gain. The MAGA immune system is in direct conflict with our democracy’s anti-authoritarian immune system. It’s a zero-sum contest, both cannot co-exist.

Writing about Cheney’s defeat in the Washington Post, Greg Sargent captures it well:

The true reason he (Trump) worked to oust her is to help secure absolute impunity for his crime spree against democracy — to clear the way to do it all again.

For Trump, the targeting of Cheney is very much about debilitating the institutions that are struggling to preserve U.S. democracy against his movement’s assault on it.

…it’s about disabling mechanisms of accountability that threaten to fully expose Trump’s wrongdoing.

Opinion | Trump just revealed exactly why Liz Cheney’s loss is so dangerous

After losing the Republican primary for Wyoming’s House seat by more than 30 points to a candidate enthusiastically…


Strengthening democracy’s “gut health”

Based on the above, the key question in my mind is “How do we ensure democracy’s immune system wins?”

Our body’s immune system is reliant on our “gut health” — the ecosystem of “good” bacteria in our digestive tract that helps us absorb nutrition and water and strengthens our body’s ability to fight disease. Through this lens, the question becomes, “how do we help strengthen our democracy’s ‘gut health’”?

I think it’s very possible, as does the just defeated Cheney in her concession speech from Sargent’s article:

“As we leave here, let us resolve that we will stand together — Republicans, Democrats and independents — against those who would destroy our Republic. They are angry, and they are determined. But they have not seen anything like the power of Americans united in defense of our Constitution and committed to the cause of freedom.”

While I’m optimistic, the threat is formidable. The majority of a major political party has gone authoritarian, while the remainder is cowed into silence. Democracy’s immune system also has a structural weakness that MAGA exploits — its insistence on freedom of speech and due process. Sean Iling, co-author of “The Paradox of Democracy”, notes,

“The history of democratic decline is a history of demagogues and autocrats exploiting the openness of democratic cultures to mobilize people against the very institutions that sustain democracy itself.”

Our democratic and law enforcement organizations can’t clamp down on MAGA arbitrarily and without due process or we become the very thing we oppose.

Supporting democracy’s “gut health” means strengthening our democratic institutions at all levels — national, state, and local — but particularly the latter two. Much of our attention is often focused on the national level because it makes for splashier headlines. However, as we learned in the fight over the 2020 election results, the state and local levels are crucial. This is where election systems are designed and operated, votes counted, and results certified.

Secretaries of state, canvassing boards, and other similar bodies are the institutions that determine democracy’s “gut health.” Each one by itself has an impact limited to its municipalities and states. But in total, they comprise our electoral system and determine the integrity of elections for every level of government. MAGA learned its lesson in 2020 and is now actively targeting these institutions. Election deniers have won nominations to these types of offices in multiple battleground states for the midterm election.

The best way to strengthen our democracy’s “gut health” is to ensure pro-democracy candidates, not election deniers, win these key state and local positions. This means voting all the way down the ballot. There’s a phenomenon in elections called “roll-off.” It is the difference between the number of votes for the “top of the ticket” — high profile races like president or governor — and those “down-ballot” — like secretaries of state, county commissioners, and election boards. The lower the “roll-off” number, the more people filled out the ballot completely. Our goal for the 2022 midterm election must be zero “roll-off.” A vote for the top of the ticket is weakened without a vote for the bottom.

I was talking to a friend recently about how to communicate this idea in a mail piece with limited space. “Fill out the whole frickin thing” came to mind. We’re still working on it.

Political thoughts

Sharing Our Thoughts about Politics

Written by Carolyn Bertolino and published in Medium.com 4/15/2022

Photo by Headway on Unsplash

After public pressure and the Facebook whistleblower coming forward last year, social media has come under scrutiny for the massive amount of disinformation shared on the platform. That’s good, but I think it’s also important to help Americans determine reliable sources of information.

The culture wars are heating up in anticipation of this fall’s midterm elections. As usual, Republicans are a couple steps ahead of Democrats on “messaging”, having successfully convinced an alarming number of regular Americans that reading a book about two moms or dads is equivalent to teaching them about sex. They don’t really think first graders are being taught about sex, it’s just an attempt to distract from beneficial Democratic legislation like the Infrastructure Law and the Affordable Insulin Now Act.

Even so, I’m optimistic about the future. Trump and his henchmen are out of the White House and laws are being passed to do things like fix dangerous bridges, mitigate climate change, and quit forcing poor children to drink water containing lead.

Still, it’s discouraging to see so many people buying into harmful misinformation. COVID was an eye-opener in terms of how dangerous fake news can be. It was truly frightening to see so many people die because they believed a lie and refused the free, safe, life-saving vaccine. We also saw the Big Lie about the election culminate on January 6, 2021, with the violent attempted overthrow of our country.

The battle against disinformation is beginning to show some small, encouraging results. Cable news, the most biased source of political commentary, has been seeing a steep decline in its viewership. That phenomenon is in fact borne out by a recent study. When Fox viewers were paid to watch CNN instead, they were less likely to believe fake news, and the results began in as little as three days.

It’s usually pretty easy to verify things, but a lot of people don’t know that. Sometimes those of us who are skilled at and used to seeking out reliable sources forget that a lot of people have never really learned how to do it. This can lead to major breakdowns in communication. If we want to reduce the decisiveness, we need to work toward a standard fact-checking skills curriculum in public schools. We also need to learn how to help our friends, families, and acquaintances stop falling victim to misinformation machines like QAnon, Fox, and Newsmax.

I used to be really judgmental of people who believe conspiracy theories. Then I started reminding myself that some of them are smarter than me in other ways, and most people aren’t out to harm anyone. With those things in mind, it got easier to find common ground and help them question those phony sites and shows for themselves. When that happens, it’s easier for people to form their own opinions based on facts rather than rhetoric or even lies.

It doesn’t even cross a lot of people’s minds to cross-check their sources, to make sure they’re not receiving self-serving information from that source. An example would be a website run by the fossil fuel industry claiming to deliver official information about climate change. Once you find out that page was written by the very industry that profits from people’s misunderstanding, then you can check with NASA or NOAA, actual scientific agencies who specialize in that field, to get the facts.

It’s also beneficial to learn how to use government websites to verify statistics, budget facts, and how congresspeople voted. Of course, you’ll probably run into people who say they don’t believe anything from any governmental agency, but that’s a different topic. Most people will be receptive to something like “Well, we can check the actual bill or law by going to www.whitehouse.gov or www.congress.gov.” If you want to know the truth about the deficit or budget, go to www.cbo.gov. It may sound obvious to go to those websites, but it never occurs to people who’ve either forgotten or never been taught.

An early example that comes to my mind was the Affordable Care Act debate. That’s when I first noticed people from my hometown become armchair political pundits after not having cared about politics before. If you wanted to know the tax penalty for not having health insurance, you could do a Google search for “Obamacare penalty”. Then when you looked through the results for websites ending in .gov, you would have come across the one highlighted here. It’s still there today, with updated information to show that the penalty has been discontinued. If you want to know the facts about what’s in a bill or law, the website ending in .gov is the one to choose from your Google search.

A lot of people were convinced that they were going to have to pay a penalty if they didn’t have health insurance. They simply didn’t know that the fine had all kinds of exceptions to keep from penalizing regular people. Hardly anyone had to pay those fines because most people making that much money already had health insurance through their job, and if they didn’t, not only did the fine have an income threshold, but was not applicable unless the available plan was less than a certain dollar amount compared to your income. Knowledge about how hard it is to find people who had to pay the penalty helps you make an informed opinion based on something other than the Fox lie about how many were actually affected.

And these are not stupid people. These were people I knew from my hometown, school, or previous jobs, as opposed to the social media connections I’ve only met online either from political groups or shared activity interests. Most of these connections originating from real life had passed the same classes, at least in high school, that I had, requiring research from credible sources. But back then the only sources we had to choose from were newspapers, magazines, and books.

They, like me, also got most of their formal education before 24- hour cable news and the internet. After technology took over, we no longer had to go to the library, and we also had more “news” stations to choose from than just the standard networks. I believe it was this 24-hour news cycle that got a lot of people interested in issues they didn’t really care about before. Unfortunately, that 24-hour news cycle has only one goal: to keep viewers engaged. And nothing is more universally engaging than controversy.

When I’m talking with people who want to develop good research skills, I tell them one good way to start is to go to websites that end in either “.gov” or “.org”. The first ending means it’s a government website that’s got reliability requirements overseen by a legally bound inspector general. Websites that end in “.org” are those of non-profit organizations. Granted, there are some questionable nonprofit organizations, but it’s a good starting place. If the organization isn’t something widely known such as www.americancancersociety.org or www.worldwildlife.org, additional things to look for in the site or article could include links to government agency websites or other well-known non-profits.

Another thing I recommend using the Associated Press and public, or non-cable, news sources. Those networks, ABC, NBC, CBS, and PBS, still hold themselves to internal standards from the Fairness Doctrine they were subject to from 1949 until 1987. Cable news was never subject to any of that, which is why it’s important to check the sources of info from them. I always verify through one of the three networks or a government watchdog website.

People who get their news from questionable sources are grossly uninformed about the recently passed Infrastructure Law and the Build Back Better bills being planned by congressional Democrats and the president. Both bills are incredibly popular, but a lot of people still honestly don’t know that the infrastructure law doesn’t raise taxes at all, and the Build Back Better bills don’t propose any taxes on people making less than 400,000 per year. And what’s really sad is that so far at least one Republican who voted against the extremely popular Infrastructure Law is already claiming they voted for it. All anyone has to do to see if those congresspeople are lying about their support is to go to the congressional website. I got there by typing “how congress voted on infrastructure bill” in Google and then put “.gov” behind it.

Now Biden is talking about a special billionaire tax. Judging by current standards, there will be a lot of misinformation surrounding it, which is another good example of why it’s so important to steer people toward reliable sources. It might be a little harder for the conspiracy theorists and Republicans to drum up opposition to the billionaire tax, because Democrats are actually calling it what it is, as opposed to the inaccurately nicknamed Defund the Police. Hopefully they’ll remember the lesson they learned on that one.

I hope things have gotten better in the debate on how to help people avoid fake news since I attended a presentation about fake news at my local library. It was given by a panel including a representative of a local TV station, someone from our state public radio, and a journalism professor from our local university.

They kept saying the only way to hear any truth was to subscribe to a print newspaper. When I got the mic, I asked for ideas on how to educate kids on reliable internet sources, because they and their parents don’t buy newspapers. I told them that even as a middle-aged adult, I don’t subscribe to print newspapers, but I know how to verify info online by checking with reputable news sources like ABC, the Des Moines Register, or the congressional budget office website. They looked down their noses at me and literally told me that if I was unwilling to pay for a print newspaper, I was buying into fake news. I really hope they have since evolved. This was 2017, at the height of the Trump-era fake news heyday.

As much as these guys wanted to, they weren’t going to be able to bring back print newspapers any more than they can bring back the horse and buggy or coal power plants. And when they claim the only source or correct news is print newspapers, they’re doing society and democracy a real disservice. They were basically discouraging families and our education system from teaching kids how to find reliable sources.

Young people seem to be getting more educated in their fact-checking, on a lot of political issues, and I think part of the reason is because they’re living the consequences of cable news lies. They’re the ones who have to do active-shooter drills in school and then can’t afford their rent or to put themselves through school even while working full-time. I commend today’s young people for taking it upon themselves to stand up against the lies, and it gives me hope for the future. At the same time, I see it as an unfortunate sort of “chickens coming home to roost.”

Now the Democrats are passing laws that will help bring us closer to the prosperity our parents and grandparents enjoyed before cable news reared its ugly head. If we help our friends and neighbors reach their own conclusions based on facts rather than lies, we’ll be able to keep the freedoms we have and restore the ones we’ve lost.

The immovable Republican Party and ‘ink-blot politics’

Written by Domenico Montanero and published by NPR

Photo by Anne Moneymaker/ Getty Images

Supporters of President Donald Trump stormed the U.S. Capitol on Jan. 6, 2021. It was an effort to stop the procedural certification of a presidential election that Joe Biden won and Trump lost. The mob was egged on by conspiracies and Trump’s lies about that 2020 election.

Those are facts. One year later, and a day after the commemoration on Capitol Hill of that attack, those facts should be indisputable.

And yet millions on the right do dispute them. They’ve been convinced by Trump, reinforced by right-wing media and enabled by Republican elected officials that his meritless lies about a stolen election are somehow true.

They are not. The independent judiciary, with many judges who were appointed by Republicans and Trump himself, as well as audits in state after state, have rejected Trump’s false claims.


President Biden blasts Trump for ‘spreading a web of lies’ in a Jan. 6 speech

How did this happen? A couple of reasons:

First, there’s a problem with how Americans are consuming information

The media landscape is fractured. Confirmation bias is real — if people believe something, there’s likely a link on social media that shows them why they’re right (even when they aren’t).

There’s fertile ground for that landscape, as trust in the media has declined over the last few decades. It hit 32% just before the 2016 election, the lowest ever recorded by Gallup. (As of 2021, it was a similar 36%.)Article continues after sponsor messagehttps://45fd2a6b3249cb21b431152230b96349.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

The decline in mass media coincides with the advent of Fox News, the conservative cable channel. Fox was created in 1996, about when Gallup found a majority of Americans said they had trust in the media.

Now, there are even more — and even more extreme — voices and outlets on the right, rife with misinformation and disinformation, that are gaining traction.

An NPR/Ipsos poll released this week showed that a majority — 54% — whose primary source of news is Fox News or conservative media believe falsely that there was major voting fraud in the 2020 election.

Second, Republican elected officials have enabled Trump’s lies

When Trump first took office and was still allowed on Twitter, he would write lots of controversial things.

When Republicans in Congress were asked about them, the answer routinely was along the lines of, “I didn’t read the tweet.”

It became something of a joke. Actually, Paul Ryan, who was House speaker at the start of the Trump administration, made the joke himself.

“Every morning, I wake up in my office and scroll Twitter to see which tweets I will have to pretend that I didn’t see later,” Ryan said in October 2017 at the annual Al Smith Dinner, which includes a political roast.

Six months later, Ryan announced he would not run for reelection.

Ryan and plenty of other Republicans had, during the 2016 presidential campaign, criticized Trump’s views and behavior. But when he won, almost all GOP officials swallowed their criticism.

As Trump went largely unchallenged from his party, he demanded fealty from Republicans, they gave it to him, and his hold on the base grew.

So the path was paved early for Trump’s lies — as outlandish and baseless as they are — to speed down the road to rank-and-file Republicans.

A similar trend has emerged this past year, since Jan. 6, as Republicans have largely avoided criticizing Trump’s role and response to the insurrection.

“In many ways, except for a number of people who’ve emerged as true leaders, like [Rep.] Liz Cheney [R-Wyo.], against their party interest, a lot of this is ink-blot politics,” said Kevin Madden, a GOP strategist and former senior adviser on Mitt Romney’s 2012 presidential campaign. “You see what you want to see on Jan. 6 based on your already-defined political persuasion.”

Supporters take part in a vigil outside a Washington, D.C., detention facility to protest the treatment of prisoners charged in connection with the Jan. 6 attack on the U.S. Capitol.Samuel Corum/Getty Images

McCarthy and McConnell

House Republican leader Kevin McCarthy didn’t mince words in his criticism of Trump days after the Jan. 6 insurrection.

“The president bears responsibility for Wednesday’s attack on Congress by mob rioters,” McCarthy said plainly, a week after the siege. He had even called Trump on the day of the riot telling him to call off the insurrection.

But instead of keeping up the criticism and casting Trump aside, less than two weeks later, McCarthy flew down to Mar-a-Lago, Trump’s Florida residence, and made amends. He released a statement — and now-famous photo — of the two of them, apparently having reconciled.

McCarthy wants to be the next House speaker — and Republicans are favored to take back the House after the 2022 midterm elections.

In May, McCarthy came out against a bipartisan, 9/11-style commission to investigate the Jan. 6 attack. This week, in a letter to his GOP conference, McCarthy derided the “actions of that day” and said the “Capitol should never be compromised and those who broke the law deserve to face legal repercussions and full accountability.”

But there was no mention of Trump and his responsibility. Instead, McCarthy accused Democrats of using Jan. 6 as a “partisan political weapon to further divide our country” and pivoted to criticizing Democrats for being “no closer to answering the central question of how the Capitol was left so unprepared and what must be done to ensure it never happens again.”

Senate Republican leader Mitch McConnell and House Republican leader Kevin McCarthy watch as a military honor guard carries the flag-draped casket of former Sen. Bob Dole from the U.S. Capitol on Dec. 10, 2021.Greg Nash/AP

McCarthy is just one example. Two weeks after the Jan. 6 attack, Senate Republican leader Mitch McConnell went right after Trump.

And though McConnell in some instances has kept up his criticism of Trump, drawing attacks from the former president, McConnell’s statement Thursday on the Jan. 6 anniversary mentioned nothing about Trump. Instead, he called Jan. 6 a “dark day,” a “disgraceful scene” — and also criticized Democrats.

“[I]t has been stunning to see some Washington Democrats try to exploit this anniversary to advance partisan policy goals,” he said.

Trump going unchallenged

For Madden, Trump has this hold on the party base because Republican leaders aren’t challenging him en masse.

“I think it’s because he’s directly communicating with the base and is really the only one,” Madden said. “Everyone else is reacting to the Trump factor. … Every force like Trump, where you to try and counter it, you’d have to do so relentlessly. Name one person who’s done that.”

Madden rattled off Republicans who might want to run for president in 2024, people like former Trump Secretary of State Mike Pompeo, Florida Gov. Ron DeSantis and former U.N. Ambassador Nikki Haley.

“No one’s taken him on directly,” Madden said. “They’ve all been reactionary, and they’ve all ceded the rostrum to him.”

Now, multiple surveys show Americans are sharply divided by party about what happened on Jan. 6.

For example, a December NPR/PBS NewsHour/Marist poll found 9-in-10 Democrats described what happened that day as an insurrection and threat to democracy. Just 10% of Republicans did.

A recent YouGov survey conducted for Bright Line Watch showed that only a quarter of Republicans said they believe Biden is the rightful winner of the 2020 election.

Former Vice President Dick Cheney walks with his daughter Rep. Liz Cheney, R-Wyo., vice chair of the House panel investigating the Jan. 6 U.S. Capitol insurrection, in the Rotunda at the Capitol on Thursday.Manuel Balce Ceneta/AP

During the events commemorating the attack on the Capitol, barely any Republicans showed up. The only ones were Cheney and her father, former Vice President Dick Cheney.

“I’m deeply disappointed we don’t have better leadership in the Republican Party to restore the Constitution,” the elder Cheney said.

Let’s just pause for a moment. That’s Dick Cheney saying this.

On Thursday night, members of Congress gathered on the steps of the U.S. Capitol for a candlelight vigil to remember what happened a year ago.

But it was missing all those Republicans.

Imagine if all 535 members of Congress had been there and the message it would have sent about democracy’s resilience.

The Politics of Supreme Court Retirements

Written by Isaac Chotiner and published in The New Yorker 6/22/21

 “It has been a little odd when people think that the best way to convince a Justice to retire is to write an open letter,” Noah Feldman says.Photograph by Andrew Harrer / Bloomberg / GettyLast Monday, Senate Minority Leader Mitch McConnell made clear that if Republicans recapture the Senate next year, they would likely reject any Supreme Court nominee that President Biden put forward in 2024. This position is consistent with McConnell’s stance after the death of Justice Antonin Scalia, in 2016, when he prevented President Barack Obama from filling the seat. (About the possibility of the Senate confirming a nominee in 2023, McConnell was noncommittal.) His comments increased the pressure on Justice Stephen Breyer, who is eighty-two, and who many progressive activists hope will retire this year, before the midterms. But Breyer has indicated that he believes the timing of his retirement should not be dictated by politics. Judges, he stated at a lecture in April, “are loyal to the rule of law, not to the political party that helped to secure their appointment.”

To discuss this issue, I spoke by phone with Noah Feldman, a professor at Harvard Law School. In a recent column for Bloomberg, he argued that the Justice “can be trusted to do the right thing—provided liberal law professors don’t box him in by declaring that he ‘must’ resign. . . . Every column or television comment—the more prominent, the worse—traps Breyer into having to stay out so as not to appear to be acting as a partisan.” During our conversation, which has been edited for length and clarity, we discussed whether Breyer should make his decision based on who is President, what we might learn from Ruth Bader Ginsburg’s death, last year, and whether it made sense to view the Supreme Court as a political institution.

Are the reasons you believe that people should not be telling Breyer to retire substantive as much as practical? In other words, is your fear solely that telling him to retire will make him want to do the opposite so as not to appear political, or do you also think that there are good reasons that he should not retire immediately?

I think the retirement decision is overwhelmingly personal, and I would not presume to tell a Justice that he or she should stay in the job if he or she wanted to retire—that’s for sure. Then, like every other observer who cares about the living Constitution, I hope that Joe Biden has an opportunity to nominate someone to the Court who shares that broad preference, and we know that, if the Republicans were to take power in the Senate, it’s very unlikely that they would confirm such a nominee.

You say it’s personal, but it’s not personal in the sense that it affects millions of people.

Well, the way you put the question was, Do I think there’s a reason for him to stay on? There might be circumstances in which you could imagine that a Justice really wants to step down and you say to that Justice, “Gee, I think you owe it to the Republic to stay in your post.” Indeed, some of Justice [David] Souter’s former law clerks said that to Justice Souter during the George W. Bush Administration, when he would say that he was ready to throw in the towel. I can imagine circumstances like that do arise, but we’re not in those circumstances now.

But, if you thought that people telling Justice Breyer to retire would have the effect of getting him to retire, is that something that you would approve of?

I would think that if someone really wanted a Justice to retire, the logical way to do that would be to communicate that privately to the Justice. I think it has been a little odd when people for whom I have a lot of respect—important scholars and academics or public figures—think that the best way to convince a Justice to retire is to write an open letter.

If Patrick Leahy or Chuck Schumer ran into Justice Breyer and said, “I think you should retire,” would that be appropriate, or would that be too partisan?

Well, that raises a different question, because those are members of a different branch of the government. I don’t think it’s appropriate for members of the executive or the legislative branch of government to say to a sitting Supreme Court Justice, “I think you should retire.” I think that’s a form of judgment or etiquette largely shared by most people. But I was talking about law professors and people like that, some of whom wrote pieces saying that Justice Ginsburg should retire, and some of whom have written pieces saying that Justice Breyer should retire.

You write about Breyer, “He is the one of the great pragmatist justices ever to have sat on the Supreme Court. . . . Breyer also knows Capitol Hill, having worked there three separate times,” and you add, “What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement.” This implies that the decision is complex and requires expertise. Do you think it is?

It’s certainly a complex decision. First, you have the personal considerations that anyone has when retiring from a position that he or she has been in for a long time. Second, you have the legitimate desire on Justice Breyer’s part, or at least I believe Justice Breyer has, to insure that the Supreme Court does not appear to be a partisan institution. To retire the moment that you have a Democratic President and a Democratic-controlled Senate might, to some people, look like you were saying that the institution is in some sense partisan, and Justice Breyer strongly rejects that idea. What’s more, at a moment when many people are insisting the Supreme Court is partisan, he has been giving lectures and is in the process of writing a book trying precisely to make a point that the institution isn’t partisan. So he has a vested interest in not sending that message. Third, of course, is the pragmatic reality he understands perfectly well that, in the new political situation that we live in, a Democratic President who doesn’t control the Senate is very unlikely to get anybody through, and that raises the risk that you might have a Republican President choosing someone whose constitutional vision or legal vision is super different from Justice Breyer’s. He’s a pragmatist, and he knows that.

Could you imagine someone like Breyer making the argument that it’s inappropriate to even consider the possibility that a Republican Congress might not let a replacement through?

Justice Breyer is a highly rational person, and he’s a realist.

Yes, in the piece you say,“The liberal legal commentariat should stand back and let the master operate.”

That’s true. I believe that, but what I’m also trying to say is that, in the course of his entire body of jurisprudence, I can’t think of a single case in which he relied on a formalism that required him to ignore reality. He thinks that reality has weight in the world and one should take account of it. So I can’t imagine Justice Breyer believing that it would be entirely inappropriate for him to, in any way, take account of political reality. That’s not the kind of viewpoint that I would attribute to him. Among other things, Justice Breyer has a concern for the Supreme Court to function well. And, in a world where a Republican Senate won’t confirm any nominee put forward by Democratic Presidents, if a Justice stepped down or had to step down in that circumstance, that would leave an empty Supreme Court seat, and that would not be good for the Supreme Court’s functioning.

You wrote another column last July, in which you claimed, “The consequences of the 2020 vote on the Supreme Court, and the country, could not be greater.” That implies that Breyer needs to retire, right? If the future of the Court hinged on who was going to win the 2020 election, then it seems like whoever won should have a chance to appoint as many Justices as possible.

Right now, the Court has a 6–3 conservative majority. If there were to be a Republican President elected in 2024, and that person had a Republican Senate, there’s a real possibility that, if Justice Breyer had to retire during that period of time, we would go to a 7–2 conservative majority, which is very different from a 6–3 majority. So, from my perspective—of someone who favors a Supreme Court that has as many Justices as possible who believe in the living Constitution—that would be a devastating consequence. That said, the current 6–3 conservative majority can already potentially reach decisions that will themselves be devastating from the standpoint of protecting fundamental rights. That could happen even if the Court remained at 6–3. Did I write that before or after Ginsburg died?

It was before Ginsburg died.

I wrote that under those conditions when it was a 5–4 Supreme Court. Things do look a little different once the Court goes to 6–3.

Right, but the reason the Court went from 5–4 to 6–3 is that Justice Ginsburg didn’t in fact retire, and died. So then how do you view her decision not to retire when there was a Democratic President?

I desperately wish that Justice Ginsburg had retired when Barack Obama was President and the Democratic Party controlled the Senate. Her health had not been good at all, and that was known to the world, and of course known to her. I am deeply saddened that she did not.

So you think waiting too long is a fair critique of a Justice?

Look, I think it’s always situational, right? When should Thurgood Marshall have stepped down? He tried really hard to make it through eight years of Reagan and four years of George H. W. Bush, and he just didn’t quite make it. [Marshall retired in 1991 because of health issues.] But should he have stepped down under Carter, almost ten years before he actually passed away? That’s a pretty tough call to make, and it is not at all clear that he should have done.

He was in his seventies, not his eighties, in the Carter years, right?

Yeah, there was a big difference of age. But, yes, I think if there’s a Justice who cares about his or her legacy, and recognizes the possibility that that legacy could be disastrously undercut if he or she did not step down, it’s sensible for the Justice to take that into account and to step down. I have a pragmatist view of it.

I’m curious about this idea, which you’ve been circling in your answers, of viewing the Supreme Court as a political institution. I understand why in theory perhaps its not being a political institution would be a valuable thing for our country. But it seems clear to me that it is a political institution and that denying that reality seems to get us not necessarily in a better place. Do you agree?

I would like to draw a sharp distinction between the Supreme Court as a political institution and the Supreme Court as a partisan institution. Hard cases that come in front of the Supreme Court, whether they’re constitutional or statutory, involve subtle judgments about how to interpret the Constitution and how to interpret the laws, and those inevitably implicate deeply held political beliefs. When the Supreme Court decides those close cases, politics unquestionably come into its decision-making process, and, in that sense, the Supreme Court is a political institution. Look, the Justices are appointed by the Presidents of different parties and confirmed by the Senate, so therefore the Justices are appointed through a political process, and, in that sense also, the Supreme Court is a political institution.

But the Supreme Court ideally should not function as a partisan institution in the sense that the Justices should not be deciding cases based on what outcome would benefit one political party or the other. That’s hugely important as a value that all the Justices should, in principle, hold. Does that mean that every Justice has been wholly nonpartisan? Of course not, but the aspiration to be nonpartisan has the effect of constraining decision-making.

Bush v. Gore happened, and when it was decided, it looked to many observers like a partisan decision, and that was very costly to the legitimacy and reputation of the Supreme Court. In subsequent years, a good number of the Justices have tried hard not to make decisions that would make the Supreme Court look partisan. An example of how this constraint can operate does not require us to go very far back in history. Just think of how the Supreme Court operated during the 2020 election. There were many people in the country, including, it would seem, the President, Donald Trump, who imagined and hoped that the Supreme Court would intervene in the election and, against established precedent, decide some case or set of cases in a way that would enable Trump to win the election even though he’d lost, and reasonable observers were worried about that.

That perception itself is very harmful to the Supreme Court. But the very good news is that the Supreme Court Justices did not go that way. Those Justices did not decide, say, the Pennsylvania case in a way that would have thrown the electoral outcome into doubt. Instead, the Justices overwhelmingly voted in a nonpartisan way that was consistent with the rule of law. We who are not on the Supreme Court should be doing everything we can to encourage the Justices in their commitment to the ideal—and it’s an ideal—of deciding cases without reference to partisanship.

I’d concede that there were a lot of overwrought claims that the conservative majority would just hand the election to Trump, and those turned out to be completely wrong. It doesn’t seem to answer the question, though, of how they would have behaved in an election that was as close as Florida in 2000. About that, I have absolutely no confidence that they would not have acted in a partisan way.

As I said, Bush v. Gore did happen, so I can hardly say that it’s inconceivable that a 5–4 majority could intervene in the way that they did intervene in Bush v. Gore. But the fact is that constraints on Justices are not there only for the cases in which they might not work. They’re still valuable the rest of the time. I thought that people’s saying the Supreme Court was going to hand the election to Trump was an overwrought view, but neither I nor anybody else could be absolutely certain of it, and the reason that our judicial system works when it works is because not only the Justices but the lower federal-court judges, too, are people who, on the whole, actually believe in the rule of law. And that set of beliefs is really important, even if we, as critical outsiders, are not naïve and admit that politics come in. Their belief, nevertheless, is importantly constraining.

You mentioned different kinds of political decision-making, and I wonder about a certain kind, beyond partisanship, which is when people work backward, consciously or not, to the decision that they want. It’s very easy for Justices to tell themselves that they’re just calling balls and strikes, as Chief Justice [John] Roberts famously said in his confirmation hearings, and maybe he consciously believes that. But I can often guess where the Justices will end up on certain Court cases, and it’s not just because I studied their judicial philosophy and understand the constitutional issues involved. It’s because I know which were appointed by Republicans and which by Democrats. Is that too glib?

It’s not a question of glibness, but it is a question of subtlety, of differentiating jurisprudential commitments from politics. Now, jurisprudential commitments include some political beliefs. In fact, when the late, great Ronald Dworkin talked about what we call jurisprudential beliefs, he said that they were grounded in what he called “political morality.” He was acknowledging that there is a morality that is connected to people’s political values and beliefs. Again, that is, to some degree, inevitable in constitutional decision-making in high-stakes cases, but it should be separable from who happens to be the President now, and whether you like the legislation or not like the legislation.

Chief Justice Roberts did indeed cast the decisive vote not to overturn the individual mandate in the Affordable Care Act case, and I don’t think that’s because he loved Obamacare. I think it’s because he really believed that, in light of the doctrine, there was a constitutional way to uphold the individual mandate. It doesn’t matter so much whether that was totally constrained by belief or whether his desire was to appear as though he was being nonpartisan. Who knows? You have to be deep in his psyche to know that. Even he might not know. But the result was a distinctly nonpartisan decision.

Could one make the argument that one side’s partisanship changes the rules of the game for the other side? I worry that the ship has left the harbor. This is now a partisan institution. Republicans act like it’s a partisan institution and will play very tough, and so, even if there’s something in theory to say for Breyer trying to establish nonpartisanship, in theory it’s naïve.

Stephen Breyer is one of the least naïve people I have met in my life, and I have very little worry that his decision-making process would be naïve. And if I did think that he were naïve, I would not think that his consciousness could somehow be raised to realism by op-eds. That said, the appointment process now is absolutely wholly partisan. That is absolutely true. We have entered a new era in the nature of the appointments process. That is different from whether the Supreme Court, in terms of the decisions of the Justices from their perspective, needs to be partisan. Notice the distinction.

You wrote a column last year about Amy Coney Barrett, in which you stated, “I disagree with much of her judicial philosophy. . . . Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer. . . . Those are the basic criteria for being a good justice. Barrett meets and exceeds them.” You also called her a “sincere, lovely person,” and wrote, “Barrett is also a profoundly conservative thinker and a deeply committed Catholic. What of it? . . . I’m going to be confident that Barrett is going to be a good justice, maybe even a great one.” The Yale law professor Akhil Reed Amar famously wrote in support of Brett Kavanaugh’s confirmation, before the sexual-assault allegations against Kavanaugh became public. Is there too much focus in the legal profession on the quality of the Justices’ reasoning or how lovely they are as a person, when what is really important is how they’re going to vote on key issues?

When I wrote that piece, it was a hundred-per-cent certain that Justice Barrett would be confirmed by a majority-Republican Senate. The point that I was trying to make in the piece was not that any particular Democratic senator should vote for her confirmation. I’m not a senator, and I didn’t have to take a position on that. What I was saying is that it is and was unnecessary to vilify a Supreme Court nominee who is on her way to confirmation solely because one deeply disagrees with her judicial philosophy and is very likely to disagree with decisions that she reaches.

We do better by fostering a judicial and political culture in which we can acknowledge the sincerity and the good qualities even of people with whom we deeply disagree, and who will do things that we think are constitutionally wrong, and the reason we do better when we’re able to do that is that it doesn’t weaken our own beliefs or our own commitments. Rather, it encourages us and encourages them to remember that we’re all in this thing called living under the Constitution together, and that if we’re all in this thing together and we’re not evaluating every issue at the personal level from a partisan political perspective, then, when the stakes are very high, as indeed they were going to be just after Justice Barrett joined the Court, in the 2020 election season, we will increase the odds that those Justices who are confirmed share the belief that I have in the ideal of nonpartisanship.

Couldn’t you flip that the other way and say that, by arguing being respectful to people changes how they behave, you are arguing that people are inherently political, and that they respond to incentives and they respond to how they’re treated, or they respond to people badgering them—

No, no. No, Isaac, I don’t think so at all. Take a social practice, such as kindness to other people. If I say that if I’m kind to you, it increases the odds that you’ll be kind to me because we’re both committed to a belief in kindness. I’m not saying that kindness is an empty value. All social values have some components of self-interest, including kindness, including goodness, including nonpartisanship. I want a legal system in which Justices are nonpartisan because otherwise the vote might go against me sometime, and [one in which] the person on the other side also believes in nonpartisanship and in its value because the vote might go against her sometime. So it’s not undercutting that commitment; it’s a reinforcing of that ideal, and that’s true of kindness, it’s true of politeness, and it’s true of nonpartisanship.

That totally makes sense, although it goes against what Justice Roberts would say about calling balls and strikes, because the whole point of being an umpire is that you’re not supposed to care how people treat you.

You’ll notice that I’ve never embraced the balls-and-strikes analogy. But you’re a sports fan, and so you know that statistical analysis shows that different umpires have different strike zones. So we know that even the analogy is referring to an underlying reality that is, in fact, not objective. Umpires do call balls and strikes, but it turns out each of them calls them differently, on the basis maybe not of their political beliefs or commitments but based on some incompletely expressed idea of what’s a ball and what’s a strike. So there is no genuine objectivity with respect to balls and strikes as long as human beings are making the call.