Let your ears open your eyes
There's just one listen that might restore your faith in the American Experiment: the arguments at the Supreme Court
Dissatisfaction with our government is a predilection hard-wired into our New World frontier nation. Whether prompted by Joe Biden’s auto-pen or Donald Trump’s Sharpie, within just the last 12 months almost every American has concluded the presidency was in crisis at least once, if at different times. Virtually no one approves of Congress, nor can anyone remember when we could.
Contempt now extends to the tertiary parts of government, too. My neighborhood is full of “I support federal workers” signs. Those homeowners do not back the current federal workers, of course, but the fired ones. Drive 40 miles into the countryside and the reverse is true. Half the country has considered the Centers for Disease Control to be a cabal of irrational conspiracists for five years running; we just switched halves.
But one institution is functioning at a high level that defies its public battering – the Supreme Court. If you have not lent your ears to this branch at work lately, you should. In this era of podcasts, the Court’s oral arguments fit well into that medium. Pop in your air pods, buckle up your weighted vest, lasso your dog, and hit play on feisty but respectful hour-long conversations about the weighty matters of the republic as you stride the sidewalks of your terroir. If may just revive your faith in this contraption dreamed up in Philadelphia in 1781, and not a moment too soon.
The Court’s stamina is now being challenged by the twin irresistible forces of legislative stasis and popular impatience. The plurality of Americans who picked Joe Biden in 2020 did so with an urgency to see the residue of Trump’s first term washed out of Washington post haste, and the voting majority that reinstated Trump in 2024 did so expecting he might leave more restorative wreckage than residue the second time around. Both presidents obliged their backers.
Congress, stranded by swirling floods of partisanship and perched on the rickety pier of battered process planking and filibuster pilings, can little legitimize or leash an executive from either side. The voters have spoken, and they insist Congress be evenly divided, with just enough lunatics on either side of the aisle to prevent anything interesting from happening.
That leaves the eight Ivy League lawyers across the street, plus Amy Coney Barrett, to suss out where we go from here. Fortunately, they are doing a bang-up job. The three thoughtful jurists Trump put on the Supreme Court - Barrett, Neil Gorsuch, and Brett Kavanaugh - are a big part of its current success, but if you recoil at that notion, stick with me anyway.
This court is derided by liberals who have not forgiven it for overturning Roe v. Wade or ruling that presidents enjoy immunity from prosecution for their official, if not their personal, actions. Conservatives were chapped when Barrett and Chief Justice John Roberts sided with liberals to thaw the foreign aid funds Trump had frozen. Next year the Court will likely affirm birthright citizenship and become a pinata for the right - on a case with prior preliminary action this summer that alternately enraged the left. The through line for both kinds of partisan lamentation is a body with a longer view, thank God.
of in a recent worth-your-time interview:“The court has to take these cases and think about them, in terms of the presidency, and not President Trump. I think the media, and all Americans watching it, watching these cases unfold, is thinking about the current occupant of the office. One thing the court has to do with these cases, and for all, is imagine it was President Biden, President Bush, you know President Yet-To-Be, 50 years from now, because the answer has to be the same.”
The wizards who crafted our constitution handed the justices a well-checked system with the guardrails they need to apply far-thinking answers. If you are a lefty who is – for the moment – concerned an executive might veer out of his Article II lane, take heart that James Madison was worried about that, too. If you are a righty who fears California and New York politicians are conspiring to pack the Senate with proportional representation, rest easy knowing that Article V explicitly prevents them from doing so.
Sturdy boundaries and effective checks still leave some wiggle room, but a careful reading of the blizzard of paper coming from 1 First Street NE in Washington assures us the justices are at least asking the right questions – even in procedural matters.
In this week’s Noem v. Vasquez Perdomo decision, an unsigned emergency docket action overturned a lower court’s stay on immigration enforcement actions in Los Angeles. This kind of procedural matter occurs on what is derided as the Court’s “shadow docket” – abbreviated, usually unsigned, decisions made not on the merits of the cases themselves but on the redlight/greenlight referee work of reconciling conflicting lower court action. Kavanaugh took the unusual step in this case of explaining himself in a concurrence, walking pedantically through the thicket of standing and precedent over 10 pages, while Justice Sonia Sotomayor and the other two liberal justices rebutted with an impassioned 20-page dissent.
If legal opinions are not your bedtime reading jam, consider the Spotify versions of the justices’ debates - the bank of oral arguments available only on audio, thanks to the quaint prohibition on cameras in the high court. It may just replace True Crime or Joe Rogan in your queue.
The court’s show last December in United States v. Skrmetti, deciding Tennessee’s ability to regulate the prescription of puberty blockers to minors, offered a master class in careful critical discourse. And the cases coming the court’s way next on birthright citizenship, emergency tariff power, and a president’s pocket recission-ing, promise more audio-worth-downloading. It will be patient, thoughtful, detailed, and more high-minded than the food fights we have on social media and cable news.
That fateful summer in Philadelphia 244 years ago the Committee of Detail, a sub-group tasked with writing the first rough draft of our Constitution, proposed a delineation of a “national judiciary,” which was to “consist of one supreme tribunal.” Among its jurisdiction was cases arising under laws passed by the Congress “and to such other questions as involve the national peace and harmony.”
Peace and harmony are in short supply in every corner of our politics, but a careful listen to the respectful back-and-forth of the nine black robes these days might be as close as we can get.
In Case You Missed It: The most-read column on The What For was a Supreme Court analysis piece. Check out AMY CONEY BARRETT SAVED DEMOCRACY.
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