Supreme Court Justice Anthony Kennedy picked a particularly bad time to retire. The Court’s long-established moderate—and known friend to LGBTQ rights—opted to step down when the United States is highly polarized and embroiled in a debate over “civility.” That debate is likely to spill over to the Supreme Court, with some on the left beating the drum to obstruct judicial hearings by any means possible, while the “civility” crowd will insist that Democrats should “follow procedure,” evoking Michelle Obama’s “when they go low, we go high” speech.
The insistence on civility in the current political climate is a mistake. With the Supreme Court, it is a mistake with tremendous costs. Whoever is appointed to fill Kennedy’s robes will have more power than almost anyone else in America—Kennedy held the swing vote on critical cases like Obergefell v. Hodges, United States v. Windsor, and Planned Parenthood v. Casey.
If there was ever a time to engage in what Representative John Lewis calls “necessary trouble,” this is it. We have a duty to future generations to be uncivil.
Donald Trump’s election was a triumph of incivility. A man who proudly bragged about grabbing women by the pussy, made racist and Islamophobic comments a core part of his platform, and conducted himself with utter disregard for decorum throughout his campaign won by leveraging the “deplorable” vote. His followers didn’t care about his lack of civility; indeed, it was a selling point, reflecting the right’s stranglehold on the state of politics and discourse in America.
The right, which positions itself as filled with “values voters” and people who care about America, has defined both “values” and “America” in a way that leaves the left continually scrambling to catch up.
Trump’s first opportunity to change the shape of the court was a travesty, one tailored for him by Senate Majority Leader Mitch McConnell and the Republicans, who successfully held Justice Antonin Scalia’s seat open for over a year after his death in 2016. McConnell infamously refused to hold a confirmation hearing for President Obama’s appointee, Merrick Garland, saying Americans should have a “voice” at the polls first because it was an election year, and one in which Republicans hoped they would retake the White House. Then they obliterated the judicial filibuster to force through approval of Neil Gorsuch.
Senator Chris Murphy (D-CT) threw this back in McConnell’s face on Wednesday, saying: “Wait, so the thing about ‘the American people should have a voice in the selection of their next Supreme Court Justice’ wasn’t really about a concern for the American people? It was just about Obama?? I am shocked! SHOCKED!!”
Trump appointed a staunch conservative in Gorsuch, and will no doubt do the same again. Though he positions himself as an iconoclast, he follows the bidding of groups like the Heritage Foundation.
The “civility” team will argue the rule of law should be followed, pointing to incidents like the recent denial of service to Sarah Sanders at the Red Hen in Virginia. “Let the Trump team eat in peace!” cried the Washington Post. Evidently being “civil” equates to never voicing disapproval in anything other than a soft murmur. Democrats should “rise above,” give Sarah Sanders her entree, and participate in fairly-conducted hearings for any nominee even as Republicans crow about racing confirmation hearings through to seat a new justice before November.
It is beyond bizarre and harmful that much of this rhetoric comes from people who consider themselves progressive, and apparently do not understand the current state of emergency in the United States—which Michelle Goldberg aptly noted in the New York Times is about democracy, not manners. There is no rule of law that’s functionally operable in a country where police routinely gun down youth of color and get away with it, while children are kept in cages for the crime of seeking asylum and political candidates harass trans women in restrooms and publish video of the encounter on Facebook.
The rule of law in America is dead and those who wish to restore it—or an era of civility—must be prepared to fight for it.
Fights for the future are not won by means of “civility” and asking nicely. While people may evoke the legacies of people like Martin Luther King in their quest for civility, they should take note of the fact that civil disobedience is, by its nature, actually uncivil: It is disruptive, aggressive, flagrant, and defiant. In “Mississippi Goddam,” Nina Simone sneered at the advice to “do it slow” when “me and my people just about due.”
Refusing to serve members of the Trump Administration is not uncivil, any more than confronting senators on aircraft or asking cabinet members questions at a restaurant is uncivil. Incivility is harassing and assaulting abortion providers and journalists, throwing feces at establishments who take political stances you disagree with, driving cars into crowds, cheering the prospect of civil war, enabling the systemic bullying of trans students, and terrorizing people with differing political opinions.
Calling, in this climate, for Democrats to use the time-honored tactic of bureaucratic obstructionism to drag this nomination fight out for as long as possible is actually relatively mild. And in truth, it’s very in keeping with the letter of the law, as the ACLU noted.
In other words: It is time to play “constitutional hardball.”
Conservatives like Mitch McConnell—who has openly admitted he is stacking lower courts with unqualified, inexperienced conservative nominees to “[change] the courts”—have been treating the Supreme Court as a partisan game for a very long time. Democrats need to give as good as they get, not in a reaction that lowers them to the level of conservative extremists, but one that acknowledges the goalposts and rule of law have shifted in the United States, and so have the stakes.
This is true well beyond the court, though losing the moderate swing vote will likely result in the almost immediate repeal of Roe v. Wade as soon as Christianists can mount a lower court challenge—and that’s just the start of a litany of terrible decisions that could roll out over decades. Challenges to bathroom bills are likely to come up before the court, as are cases revolving around employment and housing discrimination, adoption rights, access to transition services, religious imposition laws, and the right to refuse service on the basis of gender identity or sexual orientation — not who you work for or whether you support Nazis.
When a ship is sinking, you don’t politely move over to make room for the water. Adherence to the myth of “civility” got us here, and it is incivility that will get us out.