Ruth Bader Ginsburg is dead and half the country has gone into full-blown panic mode. While Republicans (rather tastelessly, in my view) gloat and chortle, Democrats have come face to face with their greatest fear: a potential third Trump appointment to the Supreme Court. Amidst the wailing and gnashing of teeth from the left are cries of “how will we survive this?” and similarly apocalyptic sentiments.
It’s fine to mourn and lionize someone you regard as a hero. That’s an appropriate response to tragedy, and this is not the place for me to debate the relative merits of the deceased. But the existential terror that has gripped the left with the passing of Justice Ginsburg reveals the inherent fragility of our system of government. As the book Antifragile by Nassim Nicholas Taleb discusses, robust systems are ones which can suffer considerable damage without falling apart.
Like the mythical multi-headed hydra, an antifragile institution can survive having its heads lopped off, not being dependent on a single central authority for direction.
This is the way the American system was supposed to work. The founders established three coequal branches of government, complete with a system of checks and balances including the state legislatures and the people themselves. The president is not an autocrat who can do whatever he wants on a whim, nor is any other individual member of the body politic. Unfortunately, over the years that vision of decentralization has collapsed into something that more closely resembles the European monarchies the founders sought to escape. Congress, the branch of government responsible for writing laws, has abdicated much of its responsibility and delegated its powers to the president, to executive branch regulatory agencies, and to the courts.
It has now become habitual for the president to govern via executive order, as exemplified by Barack Obama’s notorious “pen and a phone” comment, but beginning with progressive presidents like Woodrow Wilson and Franklin Delano Roosevelt. For all the howls of fascism about Trump’s wielding of executive authority, the concentration of presidential power has always come from those on the political left, whose ideological faith in central planning lends itself to autocracy.
Meanwhile, the Supreme Court, which is supposed to merely interpret the laws written by Congress and executed by the president, striking down those which violate the Constitution, has risen to the dangerous position of dictating the law of the land to the American people. Let’s not forget that it was the Court, not Congress, that created out of whole cloth the doctrine of qualified immunity, which protects police from civil liability. It is this doctrine that has resulted in countless abuses of power by police, which in turn have driven widespread protests, riots, and general civil unrest throughout much of 2020.
Now, with the death of Justice Ginsburg, Democrats are terrified that a Trump appointee would criminalize abortion, strip away LGBT rights, and basically undo all of the court’s major decisions from the last half century. Whether these concerns are justified is another question entirely, but the fact that people expect such far-reaching consequences from the death of a single individual proves how profoundly broken our system has become.
If one person can singlehandedly determine the legal status of a controversial procedure like abortion, or dictate which rights and privileges millions of Americans can enjoy, that person unequivocally has too much power.
The irony is that the very people now frightened of a third Trump appointee are the same ones who are always begging for a larger, more powerful central government. When Harry Reid eliminated the traditional filibuster for judicial nominees, making it easier for the party in power to ram through their choices unopposed, he was warned that Democrats would not hold a Senate majority forever. When Barack Obama sought to circumvent Congress and govern by executive order, those of us who objected knew that someday someone like Trump would enjoy the benefits of that same power. Shortsightedness, arrogance, or a deliberate unwillingness to consider the future has led us to where we are today. Like Dr. Frankenstein before them, leftists created a monster without considering that it could, and inevitably would, turn on them.
Amazingly, the election of Donald Trump has not been enough to teach the lesson that centralized power is bad, because you never know who might get their hands on it. Hopefully, the passing of Justice Ginsburg will help drive that nail home for those who still think the way to create a better country is to simply find the right person to wield a power that is fundamentally unwieldable. We can’t base our understanding of the most basic human rights on the opinion of a single judge, and then hope that judge never dies. Doing so is nothing short of suicidal, a fact which Democrats are now forced to confront to their horror and dismay.
Instead of the two parties wrestling back and forth for control over the Supreme Court, with all its implications for drastic legal and societal change, we should use this moment as a chance to take back some of the power the Court has accrued over the years, and return to a more decentralized system of laws, one which is not at risk of being completely overturned with every election or appointment. The U.S. is supposed to be a government by the people, for the people, not one controlled by unelected judges with lifetime appointments. If we focus less on beating the other side and more on creating an antifragile system largely immune to electoral swings, politics will lose its life-or-death significance, and maybe we can even stop trying to kill each other all the time. Otherwise, we are can look forward to a world in which Donald Trump (of all people) gets to determine the legal landscape under which Americans will live for a generation or more. Seems like an easy choice to me.