Might the persistence of bad judges call into doubt the thesis that we should rely on good ones?
There is certain poetic injustice in that the first draft opinion ever leaked from the Supreme Court would overrule Roe v. Wade. Leaking an opinion betrays norms essential to the Supreme Court’s functioning. Deliberation and trust are the coin of multimember appellate legal decision-making. If justices are now, as Justice Clarence Thomas says, “looking over their shoulder,” fearful of the next leaker, the work product of law will suffer, because drafts will not be as freely shared, and written internal critiques will not be as candid.
Thus, respect for basic institutional norms would in the past have assured that no clerk or any other member of the staff would leak an opinion. Preserving the Supreme Court as an institution over time trumps any short-term political goal. Since the Court is the conservator of other institutions established by the Constitution, the destruction of its norms undermines those that undergird our entire political regime.
Roe v. Wade—the case the leaked opinion would overrule—also undermined institutional norms by substituting policy for law. The notion that the Constitution ordained a three-tier structure of abortion regulation according to trimesters could be entertained only by jurists who had forgotten the difference between judging and legislating, something that was easy to do in the early 1970s after the Warren Court had elided that distinction for decades, although not quite to the extent that occurred in Roe. Even if permitting abortion is a sound policy, the constraint required of judges should force them to look elsewhere for its implementation. Preserving the judiciary’s legally circumscribed role also trumps any policy goal.
At that time, many liberals who agreed with abortion rights as a policy denounced the decision as law, noting the dangers it posed to institutional legitimacy. John Hart Ely, for instance, said of Roe, that it was” not constitutional law and showed no sense of an obligation to be so.” One of the greatest challenges for a republic is whether citizens, including elites and politicians, are willing to put institutional preservation over their immediate policy and political goals.
That willingness is always being tested, because people can rationalize that the institutional costs will be paid in the future while the policy and political gains may be enjoyed now. And institutional fidelity becomes particularly difficult in times of political polarization when many on each side of the aisle believe that the policies and politics of the other side are not only wrong, but evil. Why preserve institutional norms if you are confident that your opponents will soon eviscerate them?
We see the fraying of institutional norms in the reaction to the leak, when proponents of abortion rights have taken to noisy protests outside the homes of the justices in the putative majority. To be sure, it is not clear if the law forbids these actions. Although statutes forbid intimidation of judges, these prohibitions need to be read in the context of the long-standing First Amendment right to criticize the judiciary. But there has been an important custom in America that celebrates the ability to demonstrate in public but stops short of condoning rallies outside peoples’ homes. Respect for a private sphere where children and spouses also live bespeaks a society where politics is kept to its important but proper place. Similarly, at Yale Law School, a place where long-standing norms go to die these days, the leak has prompted new efforts by left-wing students to ostracize conservatives who are seen as ideological enemies rather than as partners in legal education’s quest for truth.
The erosion in institutional norms goes far beyond this incident. Donald Trump failed to concede his election defeat, itself an essential norm of democratic transitions despite his own Attorney General’s determination that no irregularities occurred that were of the magnitude that could have overturned the election. Here the contrast with an earlier age is plain. In 1960 Richard Nixon had far more reason to believe that John Kennedy’s victory was tainted by shenanigans in Illinois and Texas. Yet he conceded, recognizing, as he described in Six Crises, he concluded that the institutional advantages of peaceful and uncontested transition were an essential part of the American political tradition. (Of course, the differences between campaign platforms of Nixon and Kennedy were relatively minor, a fact that may have aided in the decision.)
It would be comforting to think that such disregard for institutional transitions was limited to one party and one election. But the current Democratic candidate for Governor in Georgia refused to concede the last election there. And President Biden has just hired a press secretary who previously called Trump’s 2016 election “stolen.”
The unraveling of institutional norms in the face of perceived political imperatives is sadly not limited to politics or law. Universities are supposed to be above politics and ideology so they can pursue their mission of knowledge without the distorting pressures. But now universities often declare political positions, as when they advocate measures against climate change or declare their mission to be “antiracism.” Professors are supposed to be evaluated on the quality of their research and teaching, but now universities regularly pressure them into politically correct positions by forcing them to submit statements about how they have advanced “Diversity, Equity, and Inclusion.” Again, the motivation is that some political issues are so important that they justify jettisoning long-standing institutional norms like academic freedom.
While the universities are doing this to advance causes dear to the political left, it has engendered a reaction on the right. The primary reason that opponents of classical liberalism like Adrian Vermeule and Patrick Deneen have gained traction among young conservatives is that these students have experienced the faux neutrality of institutional rules in much of university life. Many attend elite universities that decline to hire professors with heterodox conservative views, engage in preferential hiring on the basis of race and ethnicity, and tolerate student mobs that bully those with dissenting opinions. The biggest lesson that some take from higher education is that institutional norms, at least those of our classical liberal and liberal democratic institutions, are frail reeds that cannot support a good or just society.
Thus, the collapse in support for institutional norms spirals in upon itself. The weakening of institutional boundaries in our universities is accelerated by the fears that conservative demagogues will cross institutional boundaries in politics and so endanger the left-wing values dear to most of the university’s inhabitants. Institutional boundary crossing at universities where merit and freedom of thought are subordinated to identity politics in turn has soured some conservatives on political philosophies that accord respect for the whole notion of neutral boundaries, thus perpetuating a cycle of institutional evisceration. Destroy customary norms of neutrality and hark how social discord follows.
It is always easier to undermine traditional norms than to restore them. But I believe that there are at least two ways to help in the rebuilding. Since polarization is a cause of institutional decline, one solution is to tamp down on polarization by restoring a constitution that requires compromise. In a recent piece in National Affairs, Mike Rappaport and I outline a program for restraining presidential unilateralism in both the administrative state and foreign affairs. Congress should be forced to make the key decisions about regulation as well as about going to war or entering into long-term international agreements. In that way, compromise is likelier, because the President is generally more ideologically extreme than the viewpoint that would emerge from the bicameral Congress, particularly when, as is usually the case, the federal government is divided between the parties. Compromise tamps down on polarization, because legislators and the people who vote for them must look at one another as partners in a common civic enterprise.
Civic education in schools is also key. One problem on both sides of the political spectrum is that American history is often presented as a story of heroes, even if the constellation of heroes differs depending on political viewpoint. What is needed, however, is a greater focus on institutions and on the social norms that make for a democratic republic. That focus also has the virtues of getting students to think more abstractly—beyond the causes they espouse or politicians they like. For two centuries, America has continued to be a magnet for others around the globe. Its attractions fortunately have not depended on one leader or another, because most are mediocre. What has made it stand out among nations is its enduring institutions and norms—from those of self-government to personal liberty to the protection of mediating institutions that promote self-restraint. America is in decline today because those institutions are decaying and those norms are fraying.