The Senate and Supreme Court are Broken. Stop Trying to Save Them and Fix Them Instead.

Go beyond the hot takes and the emotional headlines about the Senate, the Supreme Court and American democracy, and you’ll see the contours of a deeper argument play out among analysts of good faith.

On one side are the Institutionalists and on the other are the Realists. The Institutionalists see the way American government is designed to work and want to keep it functioning as well as possible under that framework. The Realists see the way these institutions actually work in practice, and want to both reform them accordingly and adapt the tactics of responsible legislators to save democracy. The Realists are right. The Institutionalists are wrong.

This topic deserves a book-length treatment–one well beyond the patience of either the reader or the writer on this holiday Saturday afternoon.  But the outline of the argument is simple enough to understand.

Institutionalists argue that the Senate and the Supreme Court cannot function as intended if they are aggressively partisan bodies. The Court will increasingly lack legitimacy in the eyes of one faction or another, its decisions will become increasingly warped by politics, and pressure will increase to make the court more quickly and reliably reflect the partisan composition of the American body politic as reflected by the winners of recent elections. If the Court is seen as merely an unelected partisan legislature, then the entire concept of judicial review will come under fire as unnecessary and illegitimate. So, the Institutionalists argue, it is important to make the Court as anti-partisan as possible to avoid these outcomes.

Similarly, Institutionalists argue that the Senate must be where cooler heads prevail than in the House, and where simple majorities should not pass laws. Otherwise the pendulum of democracy might swing too far and too fast in one direction or the other–and besides, much as with the Court, if the Senate just became another House of Representatives then what would be the point of preserving it? So, the Institutionalists say, the only answer for saving the Senate and the core structure of the American bicameral legislature is to somehow bring polarization to heel and encourage bipartisan comity among Senators, passing only laws that have the imprimatur and approval of a significant segment of both sides.

When Justice Breyer refuses to retire because he doesn’t want to give credence to the notion that one side or the other should pick “their” spots on the Court, he is advocating an Institutionalist view. When Joe Manchin says that the Senate won’t work without bipartisanship and he wants to save it, he is expressing (if we take him at his word) an Institutionalist view.

Realists, however, have a very different perspective. Realists rightly point out that both the Senate and the Court are long beyond saving as non-partisan or bipartisan institutions. The American public is highly polarized, and the institutions of government appropriately reflect that polarization. It would be strange and anti-democratic if they did not.

More importantly, realists on the left and the center-left are quick to note that conservatives long since abandoned any pretense of Institutionalist responsibility–and are therefore playing liberal Institutionalists for suckers. In a game of prisoner’s dilemma, if one party does nothing but steal and the other side does nothing but cooperate, the thief will win every time.

Similarly, if conservative Justices retire only under Republican presidents while liberals justices hold onto their seats until grim chance happens to remove them, the Court will skew increasingly conservative. If conservatives nominate only Federalist Society extremists while liberals nominate well-rounded moderates respected by all, the Court will veer right. If Republicans in the Senate refuse to ever let a Democratic president nominate a Justice while Democrats allow a Republican president to fill seats, only Republicans will get to fill seats unless Democrats hold both the White House and Senate majority–an increasingly difficult feat as the Senate itself gives obscene overrepresentation to conservative white evangelicals.

In the Senate, conservatives have far more to gain from partisan obstruction than do liberals and progressives. After all, the status quo inherently favors conservatives. It is the left that wants to see action on climate change, voting rights, healthcare and a host of other daunting problems. The right is obsessed with two things mainly: tax cuts, and culture war ephemera that legislation is ill-equipped to combat. The current situation in which budget-related bills are allowed to pass by a simple majority in reconciliation but any other bills need sixty votes to pass, means that conservatives can pass their precious tax cuts by simple majorities but blockade any major liberal priorities. The composition of the Senate itself is a ratchet in conservatives’ favor as well: by 2040, two-thirds of Americans will be represented by only 30% of the Senate. The Senate gives enormous and undeserved weight to small conservative states, such that even a 50% threshold for liberal priorities will become daunting in the near future.

Institutionalists argue that the Senate and the Supreme Court have worked until recently and thus cannot be inherently broken. But that’s a mistaken artifact of America’s history of casual structural racism and misogyny. These institutions explicitly did not work in the lead-up to the American Civil War, as was obvious from canings in Congress and decisions like Dred Scott. They were captured by robber barons in the Gilded Age. And the broad period of supposed bipartisan good feeling that ruled from approximately the beginning of the 20th century until the days of Ronald Reagan and Tip O’Neill only existed because of the unholy alliance of Dixiecratic racists and economic progressives in the Democratic Party, alongside economic royalists and some social progressives (at least until Nixon) in the Republican Party. There were thus at least four major factions in American government, geographically isolated and at cross-purposes, such that it was often difficult to tell what either party stood for on the issues of the day.

That situation may have been good for perpetuating ill-conceived non-partisan institutions, but it was bad for transparency in government and bad for marginalized groups. A democracy in which a socially and economically progressive party does battle with a socially and economically conservative one is healthier for democracy and debate, even if it destabilizes institutions of government foolishly designed to operate best in the absence of partisanship.

The greatest mistakes the Founders made were not acting forcefully to end slavery regardless of how the slave states might react, and not anticipating the reality that political parties would dominate all other factional sentiments. The Senate and the Supreme Court reflect that racist legacy and that naive anti-partisan idealism. They have never worked as intended; the modern Republican Party is breaking them in hopes of permanent authoritarian advantage; and they do not deserve to “saved” from current realities. The Realists are right. The Institutionalists are wrong.

It may well be that the Senate and the Supreme Court will become superfluous relics if the number of Justices is expanded, the filibuster eliminated and states added to correct partisan imbalance. But that’s not a serious problem if democracy itself is preserved in so doing and authoritarianism is prevented. Both the Senate and the Court are means to democracy’s ends, and it’s OK if their relevance sunsets in view of partisan realities.

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David Atkins

David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.