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We need to recognize how remarkable this is.
/1 https://www.nytimes.com/2020/12/11/us/politics/supreme-court-election-texas.html?action=click&module=Top%20Stories&pgtype=Homepage
/1 https://www.nytimes.com/2020/12/11/us/politics/supreme-court-election-texas.html?action=click&module=Top%20Stories&pgtype=Homepage
Part of me, of course, wants to see this as mundane -- as the Supreme Court doing exactly what it _should_ have done, exactly what every non-quack legal expert said it would do. But it would be wrong to dismiss the fears of those who worried it would do the opposite.
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As someone who studies authoritarian politics for a living, I would encourage all of us who have the privilege of living in democracies to retain a healthy appreciation of institutions working the way they _should_.
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The argument that SCOTUS _would_ rule this way because it _should_ rule this way was always specious, in my view. Of course it should. But 106 GOP congressmen and 17 state attorneys general _should_ also have refrained from filing amicus briefs.
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The GOP and Trump _should_ have recognized defeat, even if they don't like it. Fox News _should_ not be giving a platform to lies about 'illegal' ballots. Shall I continue?
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Ok, I will: the US Gov't _should_ not be a feeding trough for the president's children. The Senate _should_ have waited before filling RBG's seat. Congress and the Administration _should_ protect whistleblowers, not persecute them.
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In short, the list of impeachable offenses -- by this president and by his allies on Capitol Hill and in state capitals -- is so long that all of them _should_ have been drummed out of office a long time ago. And yet they were not.
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This gap between _should_ and _would_ has yawned because institutions do not act in their own right. Institutions have power because they shape the behaviors of the people in them, and they shape those behaviors by shaping expectations.
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In other words, institutions allow us to predict outcomes by telling us how people are likely to behave. And we have learned over the last four years to expect people to behave badly.
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If 106 Republican Congressmen could sign on to Texas's laughable lawsuit, was it really unreasonable to think that 6 SCOTUS Justices could do the same? That they could act out of self-interest or a warped, Foxed-up interpretation of reality?
Of course it was reasonable.
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Of course it was reasonable.
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The fact that SCOTUS in this instance closed the gap between _should_ and _would_ is important and should be neither overstated nor understated. They have not single-handedly saved American democracy. We have a lot of work to do to close the should/would gap elsewhere.
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But to take this case -- and even worse, to rule in Texas's favor -- would have closed the should/would gap in the other direction. It would have removed the last of the 'old' expectations and given people a new one: an expectation that the Constitution has no force.
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It is remarkable that the six Republicans most able to inoculate themselves against whatever has infected the rest of the party were those occupying precisely the office designed by the framers of the Constitution to be most resistant to the animal spirits of politics.
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But it wasn't a 232-year-old piece of paper that made SCOTUS rule that way. It wasn't the building or the air inside. It wasn't even the books and the robes. It was the people. It was _their_ expectation that this was what they _should_ do.
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Future historical sociologists will delve into diaries and notes of those Justices and tell us how those expectations were formed, and why they withstood what others cannot. I do not pretend to know. But perhaps we should not wait that long to find out.
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Perhaps we should study the thoughts and ideas of those people -- and particularly those 6 Republicans, with whom I agree on practically nothing else -- to map the genesis of their political T-cells. Perhaps we should learn to spread that immunity to the rest of the herd.
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I don't want to predict the future. But I do want us to take a look at this moment, if only for a moment, and understand what it means.
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