On Seeing Two Things At Once

Or, What to Make of Polarized SCOTUS Commentary

Sometimes it’s impossible to see two things at once. Think of the vase that, if you squint, becomes two silhouettes, or the sketch of a young woman that can suddenly look like an old one. Something similar is happening right now as people debate the Supreme Court’s recent performance.

Two different things are true: (i) the Supreme Court is very conservative, and (ii) the Court, in tandem with the rest of the federal judiciary, has substantially checked the Trump Administration.

This combination of facts creates cognitive dissonance for many (most?) members of legal culture, for conservativism is now linked to the Administration. So many of us have trouble keeping both of these important facts in view at the same time.

One way to resolve the dissonance is to focus on the Court’s conservativism and downplay or ignore all the many ways that it has preserved the rule of law. ‘Sure, the Court blocked deportations under the Alien Enemies Act, stopped National Guard deployments, invalidated tariffs, preserved traditional birthright citizenship, safeguarded the Federal Reserve, and more – But don’t believe your lying eyes!’

A lot of progressive commentators are taking this approach.

Another way to avoid hard thinking is to do the opposite: train attention on all the ways the Administration has been stymied. ‘Yeah, the Justices vastly expanded the President’s power within his branch, stopped majority-minority districting, green-lighted immigration-enforcement efforts, offered expedited relief from lower court injunctions, and more – But don’t believe your lying eyes!’

A lot of conservative commentators are taking this approach.

Apart from resolving cognitive dissonance, these two strategies can be explained by self-interested and public-interested rationales. Many of these commentators have audiences and constituencies who expect a certain narrative. It would be personally hard for these commentators to pivot and costly to embrace nuance.

More selflessly, many commentators earnestly believe in their causes. They want progressivism/conservativism to win completely. And someone rallying troops does not often pause to give a sympathetic account of the adversary. Instead, the adversary must be depicted as not just wrong but completely awful.

I suspect that many people in each of these two groups are not cognizant of the other group. In other words, people who mainly absorb progressive media may not realize how many conservatives have been furious at the Court during the past year or so. And, likewise, many who digest conservative media may not appreciate how angry many progressives have been. Or perhaps each side does know about the other but still has a hard time seeing past its own sense of grievance—which would itself be a problem with seeing two things at once.

Now, nothing I’ve said here disproves arguments from progressives or conservatives in favor of reforming the Court or changing the law. Sometimes when two sets of partisans disagree, one of them is correct. Maybe the Court has done much too little, or else much too much. Or maybe a combination of both.

In addition, nothing I’ve written here suggests that the Court is moderate, as judged by either legal or political standards. Again, what I’ve described is a conservative Court that has also checked the Trump administration. The Court has played that complex role in part because it is a relatively old-school conservative court and Trump is a relatively new-school conservative president.

Yet finding a way to see two things at the same time can inform or change how we think about the Court, the law, and proposals for reform.

One upshot is that audiences should make sure that the arguments they’re hearing in favor of various proposals are conscious of the dual role that the Court has played in recent years. Arguments that paint the Court in a one-sided way are inaccurate, even if they offer good rhetoric and effective troop rallying.

A careful argument for reform might acknowledge: “The Court has sometimes been helpful, or even good on net—but we can do better.” As I hope I’ve made clear, both the left and the right can plausibly have that attitude.

Finally, seeing both aspects of the Court’s recent performance can create room for compromise. If everyone has some reason to appreciate the justices, then so much the worse for proposals that would break the third branch or render it toothless. Instead, proposals that more carefully calibrate or check judicial power may find bipartisan support—and actually come to pass.

Even if we can’t see two things at once, we can at least remember to alternate our perspective, briefly seeing things as others do.