Tit For Tat Does Not Work If You Do Not Retaliate Against Defectors

A few of us attended a conference last week, ostensibly framed around The UnPopulist's Reconstruction Agenda. However, as Dan Drezner notes this morning, the conference itself did not seem to offer much in the way of such an agenda.

Attendees were split on expanding the Supreme Court as a means to overcome the current conservative cabal. As for a positive agenda, I did not hear much in the way of reconstruction. For example, while the panel on historical reconstruction efforts was interesting, the obvious point that everyone raised was that large-scale reconstruction usually happens only after a war or revolution. Democrats winning in 2028 does not quite rise to that level.

The court expansion thing concerns Liberal Currents' participation specifically. Friday's first panel included David French, Bob Bauer of NYU Law, and Liza Goitein of The Brennan Center. All three of them were quite lawyerly in their orientation, quite fretful about future Democratic presidents "going too far" in response to the current crisis. They also talked about the challenges posed by the pardon power, among other things. Their response to that was to suggest that Congress should pass a law setting boundaries on the pardon power and then test that law in court.

When it came time for questions, I asked them to react to the case for simply not holding back. Expand the Court with justices who are committed to a narrow interpretation of the pardon clause, who will overturn the all the precedents that ground the VRA into dust, who will actively support the effort to prosecute the criminals of the Trump administration. The reaction was uniformly one of horror. Bauer said "you don't respond to norm breaking by breaking more norms." French said "Court packing will lead to the dissolution of the republic."

Not everyone at the conference was like this, not at all. But about a third of the audience clapped for French's line. And in all honesty, I had only one reaction to the panelists and their cheerleaders: these gutless losers will never win. If they have their way, we will, at best, remain in this crisis for a generation longer, and at worst we will simply lose the war.

Tit for tat is an important strategy for maintaining institutional peace long term, but it does not work if you never retaliate against defection. My actual question was not whether we should expand the Court or not, because it is simply obvious to me that we should (whether a one time expansion or something more like the Wyden plan, I am agnostic on).

What I was trying to suggest is that we need to actually deal some immediate consequences to those breaking the republic before we can begin to talk about long term political settlements. It's one thing for Democrats to propose an amendment to the Constitution that creates term limits for judges when there's a conservative supermajority on the Court. It's quite another to do so when they've added five more liberal judges and have shown they'll go tit for tat on any effort to capture the Court outright.

Dan Drezner wonders whether there really is a Reconstruction Agenda. The answer is that, yes, there is. The Unpopulist's own Andy Craig has one, and it's quite good.

But as Liberal Currents readers are well away, we have one of our own, one that will be arriving in people's mail as early as tomorrow (as is available in PDF form this very moment).

My question was grounded in the same premise as Nicholas Grossman's essay in our collection.

When norms are sufficiently broken, with impunity, and entirely by one side, you do have to break norms in response. That doesn't mean you have to break the law. It is perfectly lawful to expand the Court. It is perfectly lawful to investigate former officials for fraud, bribery, and abusing the powers of their office. Democrats have just been afraid to push too hard on this because they did not want matters to escalate further.

Matters have already escalated further. Anyone who has lived through the past 18 months and still thinks it is too dangerous to retaliate with everything we have is someone who cannot be trusted to lead us to victory. We are far, far more likely to witness the "dissolution of the republic" if a Democratic trifecta holds back than if they exercise their lawful authority to add more seats to the Supreme Court.

That panel was not representative of the whole conference. The first day was very good. There were other panels that were also very good, and many figures in attendance who know better and said so. But the unanimity of those three lawyer-brained people on stage, representing the right and the liberal wing of our broad coalition, is all the more evidence that we need to spread The Reconstruction Papers as far as possible.

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