The Doom Loop Of Wimpy Politics

Inside the mailbag: Sam Alito ... Pete Buttigieg ... Roy Cooper``

(Photo by Brendan SMIALOWSKI / AFP via Getty Images)

Michael: Brian, I want to challenge you on the implications of your argument that Alito might seek and gain electoral advantage for the GOP by retiring in September. I think your story of how this would happen is very plausible. The GOP has been using SCOTUS as an issue to drive out its base for decades and it has been very effective for them.

But in other contexts you have (I think) argued that Dems should pack SCOTUS at the earliest opportunity.

Given the GOP track record of effectively wielding SCOTUS as an electoral issue, isn’t packing SCOTUS just going to be a recipe for massive electoral backlash?

I honestly don’t know whether SCOTUS is still the great electoral issue it was for the GOP pre Dobbs, Trump imunity, many other bad rulings, etc. But if you tell me thatt the GOP, with help from Sam Alito, can ride that issue to midterm success (at least in a relative sense), then what makes you think Dems could both pack the court and retain power (withotu which the court would very quickly be repacked by the GOP)?

Personally, I’d feel way better about the potential for court packing or other reforms if Sam Alito announced his retirment in September and the GOP tried to run on it and got spanked, than if it turned out to be an effective tactic that allowed the GOP to cut its losses and maybe hold the Senate.

There is a tension here, in that Democrats, as the party of constitutional softball, frequently use rhetorical wiggle-room as an offramp from confrontation, rather than as means of throwing Republicans off the scent of their plans. Strategic vagueness can be a tool for advancing reform without attracting controversy; it can also be a tool for pandering to your own supporters without actually pledging to do what they want. This is why advocacy groups and activists are always at pains to nail Democrats down to specific public commitments, which are much harder to walk away from.

So, it’s true, I want Democrats to expand the Supreme Court at the first opportunity. I’m also sensitive to the fact that waging a presidential campaign on a big open promise to expand the Supreme Court may not be the most strategically sound way to win power.

This is why, in the past, I’ve suggested Democrats could make somewhat vaguer threats and commitments—that there will be a “reckoning” for the theft of the court, and its subsequent abuses, etc. etc. The problem is: see paragraph one. This is a dilemma that arises from losing the trust of your own voters. And you can see how it might create a doom-loop of defeat: To win back trust, Dems might make more controversial promises, which in turn make them likelier to lose, which in turn erodes trust further.

The good news is, there’s 2.5 years to go until the earliest possible opportunity to reform the judiciary. It may be that Democrats defy 18 years’ worth of expectations between now and then, and begin acting like a dignified opposition party, such that Democratic voters feel comfortable taking a flyer on a campaign pledge that’s less concrete than “I will add four seats to the Supreme Court.” The court is also badly discredited already; by 2028, there may be enough of a clamor for reform that Democrats no longer have to fear backlash.

That seems to be what Pete Buttigieg believes. He’s been talking pretty openly about court reform in recent weeks (though a few things he’s said make me question his commitment to reforming the court as a matter of immediate business—perhaps I should reach out to him for a clarifying discussion).

Either way, point is, we have time before Democrats have to make any major strategic campaigning decisions. This is a question for 2028, not for the midterms.

And this is partly why I’m a bit indifferent, personally, as to whether Alito and Trump attempt or even complete such a naked power grab—so long as Democrats don’t simply resign themselves to defeat, as they did when Mitch McConnell stole the Scalia seat in 2016. I want Schumer to do what I argued he should do at the bottom of that piece. To begin jawboning now, before Republicans can set any scheme in motion. If it doesn’t “work” in the literal sense of deterring the power grab, it will still hearten voters in the Democratic electorate, and strengthen the case for expanding the court down the line. It may actually be salutary, in some sense, for Alito and Trump to run such an outrageous Hail Mary play, because it would underline the moral and political imperatives of court packing, and circle them in red ink.

I often get accused, by people with more conventional strategic views, of prioritizing expressive politics (e.g. jawboning) over substantive politics. I think it’s basically an unfair charge—literally false, based on a false dichotomy, and, frankly, a difficult allegation to parse. Politics without “expressive” politics would be incomprehensible. If you think perception matters at all in politics, then adopting an attractive or respectable posture is essential, even when there are no obvious stakes.

But it’s also true that rhetoric often serves as policy change even in the absence of new rulemaking or lawmaking. Wonks who recoil at the notion that Democratic politics should entail much more “expressive” partisan brawling understand this perfectly well in the context of, say, monetary policy. Communication from the Federal Reserve has a real if invisible mechanical effect on market behavior.

Something highly analogous happens when a political leader speaks with authority about his party’s intent. If Chuck Schumer were to say, credibly, that Democrats will not provide votes for the September budget unless the legislation proscribes Trump’s efforts to subvert the election, that changes politics. Substantively, it anchors negotiations in a clear place, which should tend to shape the outcome. It also elevates an important issue—Trump’s open but arcane efforts to cheat in the midterms—and puts Republicans in a bind: Do we stand up to Trump? Or do we go into the midterms with the government shut down, on the principle that Democrats must fund their opponent’s coup d’etat?

The same thing holds on the “expressive” side of judicial reform politics. If the Democrats’ express position is that there will be a reckoning for the theft of the court, it gives the bad actors on the court something to think about when they’re deciding whether and how to abuse power.

Ellis Weiner: SCOTUS has given Trump unusual powers. If (/when) a Dem wins the White House, how should he or she demonstrate that turnabout is fair play? How should they use those powers to advance a liberal agenda? Even assuming this crap Court might find a way to rule, “Oh, sorry, we only meant that for Trump or another Republican,” what should this Dem POTUS at least try?

Magnifying the contradictions like this will ideally be unnecessary because H.R. 1 will become law in January 2029, and it will add four seats to the Supreme Court. At that point, Democrats could just govern as envisioned in a democracy, free from the anti-constitutional John Roberts-era encroachment, in which the Court serves as standing Inquisition against all Democratic policy.

Speaking of Buttigieg, though, he said something recently that bears on the question.

“To me, the executive branch needs to become both more and less powerful. It needs to become more capable when it comes to things like confronting inequality and standing up for the little guy and addressing fraud and misbehavior by powerful organizations and corporations. And it needs to become less powerful when it comes to things like surveillance and intimidation and monitoring and restricting speech.”

This caught my eye, because what he’s describing would essentially invert this court’s partisan and unprincipled view of executive power, which they’ve inscribed as binding constitutional law.

The Republican justices have saddled us with a unitary and immune executive, but largely stripped the executive branch of the power to make progressive policy. Buttigieg is describing something like the opposite: an accountable and well-checked president, who oversees a much nimbler bureaucracy.

The challenge is that inverting the status quo would require changing precedent, which would in turn require expanding the court. If the votes weren’t there, a Democratic president would have to either resign themselves to failure, or else start getting imaginative.

Under standing precedent a huge range of activity that liberals and progressives expect of government—from business regulation to democracy promotion—is illegal; but it’s perfectly kosher for the president to harass executives and state-government officials with threats of imprisonment and blacklisting into adopting the same policies envisioned under “illegal” federal policy. So a Democratic president could endeavor to improve environmental or health-care outcomes by sending FBI agents to seize materials from fossil-fuel and insurance companies and their executives. A president could shower allied interests with money in violation of the Antideficiency Act—a statute with criminal enforcement penalties—shielded from accountability by the immunity precedent in Trump vs. United States.

To be clear, I’m spitballing: clever lawyers with the appropriate DGAF attitude could do a better job devising stratagems. But, yeah, either we reform the system or what’s sauce for the goose has to be sauce for the gander.

Charles Stone (via email): Hi Brian,

A lot of this resonated but in the spirit of seeing the world as it is not as I wish it to be:

1. What about the evidence that more moderate candidates do better in swing states and districts? As a NC voter for the past 22 years, I’ve not found much evidence for the theory that more left wing candidates outperform center left ones in elections in our state. I don’t think a more Sanders style candidate would have outperformed Roy Cooper for governor, for instance.

2. How does the party’s greater willingness to embrace (whatever their normative merits) ever more objectively unpopular cultural stances in the decade leading to 2024 sit with your analysis that everything was paint by numbers/moneyball messaging? Allowing, for example, Biden administration public health officials to testify in front of Congress using the term “birthing persons” instead of “mothers” can’t have been a result of timid poll testing.

Defending democracy means winning elections. The theory of the case that says that centrist policy positions and choosing what culture war fights to pick (which is different than defending existing gains) is not dead to me.

Though we don’t always agree, I appreciate what you write.

And I appreciate respectful pushback!

Starting where you ended, defending democracy obviously requires winning elections (cf. 2024). I think it’s reasonable from the vantage point of 2026 to say that rebuilding democracy requires winning elections. But this is almost tautological. It’s a bit like saying defending a title requires defeating the next challenger. It can’t be the beginning and end of the analysis. It begs questions, in the formal sense, about how best to do that, and at what potential costs.

One could endeavor to win an election in counterproductive ways, and thus set back the cause of defending democracy. Likewise, one could endeavor to play it so safe, set standards so low, that democracy loses its appeal as a system that can deliver prosperity and freedom to people. Democrats could save “democracy,” but a form of it that has lost most of its value.

This is why I wrote the piece as an endorsement of constitutional hardball, rather than of the left-wing insurgency per se. I agree with you that the insurgents are engaging in self-serving and cavalier thinking: You lost, ergo to win we need to shimmy the ideological center of the party in our direction. They have theories about why socialism will prove more appealing than old Democratic Party hat. But they are just theories, and absent evidence, this argument—“it’s our turn now”—is just a non sequitur.

And as you say, the evidence if anything points in the other direction. Run the policies that win primaries in New York on a general election ticket in North Carolina, and you’re probably going to lose.

The point of my piece was that voters are flocking to leftists because Democrats lost the trust of their voters; and they lost the trust of their voters (and arguably lost actual elections) because their aversion to hardball politics put them behind the eight ball in just about every high-stakes partisan conflict of the past two decades.

So I’m not saying Roy Cooper should ditch what’s working and adopt the Sanders agenda. He seems to be doing just fine. What I am saying is that if Cooper had drawn a Sanders-backed primary opponent, he might have been in some trouble. And I think the solution for Democrats anticipating this bind isn’t to guard their left flanks by embracing the progressive catechism. It’s to disavow the wimpy politics that got the party into this mess.

Moderates in reach states and districts are constantly at pains to distinguish themselves from the national party; they almost always use policy disagreement as a proxy for independence. Guns, or the border wall, or whatever. And hey, if it works, great. But I would eventually like to see some more visionary candidate try something like this:

• In 2009, Republicans invented an unconstitutional veto power over all legislation, and Democrats did not respond. As a result, Democrats delivered worse health care and fewer jobs than they would have if they’d been more willing to stand up for themselves—and for you. Many analysts believe that the slow recovery from the Great Recession created the public discontent that allowed Donald Trump to consolidate power and unravel democracy.

• In 2016, Republicans asserted the unconstitutional power to steal a Supreme Court seat. The constitution instructs the Senate to advise and consent, Republicans wiped their ass with it. Democrats did not respond; they did not try anything creative to force Republican hands, effectively acceding to the theft. They lost the court for a generation.

• In 2021, Democrats quickly abandoned efforts to hold Donald Trump accountable for attempting a coup and inciting an insurrection; as before, they also continued to allow Republicans to veto legislation, making democracy reform impossible.

• In 2022, the Supreme Court overturned Roe v. Wade and, for all of the above reasons, Democrats were unable to respond—not by codifying the right to abortion, certainly not by stripping the court of its power, which it went on to abuse in sabotaging prosecutions of Donald Trump, and granting him immunity from criminal law.

• This is what has to change about the Democratic Party. It has to be willing to unrig the system so that government can function at a rudimentary level. If we don’t do that, we won’t be able to deliver you better health care, or cleaner air, or a viable immigration system. We won’t be able to get money out of politics or make corrupt officials answer for their crimes.

• My friends on the left think the solution is for the party to adopt a more uncompromising national agenda. But they are wrong. They’re wrong because they haven’t figured out how to sell progressivism in the conservative states we need to win to govern. And they’re wrong because they are putting the cart before the horse: If they charge ahead without first joining this fight to save democracy, they will run into all the same roadblocks the establishment did over the past 20 years; they will fail, too, but leftishly.

So that’s point one.

As to the point about Democrats embracing unpopular cultural stances from 2014-2024: My view is that this was less “Democrats” than progressive cultural figures, and to the extent it was Democrats, it was mostly rhetoric (as you note, they used language designed to signal affinity with progressive interest groups) rather than legislation.

But I don’t think I’ve ever suggested Democrats, in their current formation, are incapable of overreaching or of losing popular touch or, crucially, of misjudging the power of Republican propaganda. Adopting language like “birthing persons” surely struck them as a low-cost or cost-free way to manage intra-coalition tension, without causing any change to policy or material conditions. If elections ultimately turn on those substantive things, the risk of being a little bit rhetorically weird must be pretty low. That was probably a miscalculation. It militates for: 1) more plainspoken rhetoric; and 2) more effectively countering GOP propaganda. They’ve made some strides on the former; many fewer on the latter.

When I say Hillary Clinton ran a conventional moneyball campaign, what I mean is she poll-tested her actual agenda, consulted polls to gauge her performance, and, convinced of a lead, became complacent. She ran the ads message testers told her to run in the markets they told her to run them in. She trusted her technologists to have a precise bead on where to deploy GOTV resources.

What she didn’t do is savage Trump as ruthlessly as he sabotaged her. She tried a bit clumsily (though appropriately) to refer Trump’s Russia ties to federal authorities; but I don’t think it would ever have occurred to her to ask her friends Barack Obama and Harry Reid to make what they knew public. To play constitutional hardball, in other words. And so they bent to pressure to keep their mouths shut.

Trump welcomed foreign hacking; he and his allies in the FBI and Congress prevailed on James Comey to insert himself into the election. Democrats did not respond. Obama did not contemplate firing Comey for insubordination in July of 2016. He decided not to alert the public about the cooperative relationship between Trump and the Russian government. And the election was lost.