Arguments

Ron Fournier's Infallible Court

Thinking about the law with centrist pundits.

By Nathan Pippenger

On Friday, I criticized the tendency of elite writers to shrink from stating outright that Washington is broken because of Republicans, and instead blaming “both parties” or various unnamed “politicians.” Part of this hesitance, I think, arises from a misguided excess of reverence for the institutional embodiments of the federal system—instead of the values underlying those institutions. Nobody denies that institutions are important, but as congressional Republicans’ recent obstructionism has revealed, many analysts are willing to excuse catastrophic governmental dysfunction so long as superficial institutional traditions are left in place. That’s why centrist pundits were roughly as upset by the Republicans’ unprecedented abuse of the filibuster as they were by Democrats’ eventual decision to say “Enough!” and change Senate rules. The filibuster itself was a familiar part of Senate life, and its preservation was therefore roughly as important as the governmental breakdown that made the rule changes necessary in the first place.

Another data point in this theory emerged Friday, when the Supreme Court agreed to hear a case concerning the ludicrous legal attempt to gut the Affordable Care Act by exploiting what amounts to a typo. The opponents of Obamacare are making a patently ridiculous legal argument, and the Court’s indication that it will entertain that argument is highly troubling. So of course it was unsurprising to see Ron Fournier, the paragon of both-sides-do-it centrism at National Journal, leap to defend the Court from its nasty partisan doubters.

Fournier kicked things off with a tweet Friday morning scolding Ezra Klein for calling the case “ridiculous”:

Notice that Fournier’s reaction totally avoids the obvious substantive question of whether the case is, in fact, ridiculous. In response to questioning from health care expert Harold Pollack, Fournier confirmed that he is more interested in the stature of the Court than the quality of its rulings:

What’s so amazing about this exchange is that, when pressed, Fournier declares allegations of Court partisanship to be attempts at “de-legitimization” and therefore of out-of-bounds almost by definition. History, he writes, will be “unkind” to such people. They’re on par with segregationists!

Segregationists, of course, are hardly the only Americans who have leveled harsh criticisms against the Court. And pace Fournier’s dark insinuations, history has been kind to some of these critics (the pre-1937 anti-New Deal Court, for instance, has fared poorly with nearly all legal historians, and rightly so). In a sense, Fournier’s reflexive condemnation raises an even bigger issue than how the Court’s ruling in this case will affect its reputation. Consider Fournier’s logic: the question of whether a case is “ridiculous” is beside the point; simply saying so is an attempt to de-legitimize a potential Court ruling, which is flatly unacceptable (that’s why history will treat such attempts unkindly). On this argument, it’s unclear whether the Court could ever come to lose its own legitimacy through disregard for precedent, contempt for legal logic, or rank partisanship. If it sunk to this state, how would anybody know? Pointing out the obvious reality would amount to an attempt to “de-legitimize the Court.” And avoiding that impolite suggestion is, of course, far more important than asking whether the Court has preserved its legitimacy in the first place.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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