Back to Prindle Institute

A “Rogue Court”?: Integrity and Majority Rule

photograph of curtain drawn to inner chamber

Ever since the decision in Dobbs was handed down, there’s been a great deal of ink spilled about the Supreme Court “going rogue.” Whatever image those words are meant to conjure, it can’t be that simply by contradicting popular opinion justices act wrongly. Indeed, to do its job and fulfill its essential function – safeguarding individual rights and acting as legal backstop and ultimate umpire for conflicting claims to basic protection – the High Court must be able to act in opposition to the majority’s will. We should all be relieved that when it comes to who receives a fair trial or who may cast a ballot, we don’t simply put the matter to a vote (or do we?).

We think that the fundamental liberties that citizens enjoy are not the kind of things that should expand and contract with the ebb and flow of favorable representation in Congress.

As Evan Arnet argued yesterday, sometimes the sausage that our legislature – held hostage by party politics – produces simply won’t do. Everything can’t depend on a mere up or down vote; some things must be guaranteed. Enter: The Supreme Court.

In no small part, our need for the High Court to chaperone the legislature stems from the fact that the masses are deeply misguided when it comes to the facts on the ground (see The New York Times’s recent moderated discussion with pro-life and pro-choice focus groups where multiple respondents on both sides thought that abortion was more physically dangerous than childbirth for a woman and estimated that 30-40% of abortions take place after the first trimester – when in reality it’s less than 10%). What we require is a final ruling made by legal experts standing above the political fray who see the matter clearly and can anticipate the legal implications that we mere mortals hardly perceive.

So rather than the common complaint about the justices being out of step with the court of public opinion, the real trouble with the Courts’ recent pronouncements must lie elsewhere

– perhaps in its shifting attitude toward the separation of church and state (Kennedy v. Bremerton School District), toward precedent (Dobbs), and toward interpretive consistency (Bruen).

These are all significant complaints to be sure, and each warrants careful consideration. But rather than taking up these criticisms in isolation, I’d like to point to an overarching picture that paints these seemingly disparate complaints as a constellation of related concerns. The public’s historic lack of trust in the Supreme Court may indicate, as Ronald Dworkin once suggested, that “Integrity is our Neptune” – a celestial body we discover only by first recognizing that it’s missing.

So, what is integrity? Simply put, integrity demands that the law be created and adjudicated in a consistent way. Dworkin insists that proper legal interpretation requires commitment to moral coherence. We should strive to comprehend our legislative and judicial history as one of continuity. Judging, Dworkin claims, is not unlike being a writer of a chain novel. You’re tasked with interpreting the major, minor, and latent themes running through the narrative to date and contributing to that tale in a way that does honor to what’s come before – you situate decisions so as to present our legal history in the best possible light.

Ultimately, integrity represents a compromise between the weightlessness of a living constitution and tyrannical rule of a dead hand from a bygone era.

Both of these can devolve into judicial activism and thus commit the gravest of grave sins: legislating from the bench – either by a complete reimagining of the Constitution and our legal history, or by an outright refusal to appreciate the needs of our evolving and ongoing story.

What makes integrity important? The Supreme Court’s legitimacy relies on appearances. We expect justices to rule according to the law and not their politics. The trouble is that it’s extremely difficult to disentangle the two. Do one’s legal convictions shape their political leanings, or does one’s politics dictate their judicial positions? Demonstrating that fidelity to law comes before party loyalty requires a kind of sacred devotion to impartiality and detached public justification (or perhaps simply a renewed commitment to better covering one’s tracks). For if judicial review – the power of unelected judges to strike down the popular will – is exposed as nothing more than partisan warfare by other means, then the game is lost and the lie of democratic representation is exposed. The emperor has no clothes.

How do we know when the clothes (integrity) aren’t there? Dworkin offers a thought experiment: Imagine a law that made abortion criminal for women born in even years but permissible for those born in odd ones. Such a policy might accommodate the 60/40 split in public opinion on the issue.

Allowing each of two groups to choose some part of the law of abortion, in proportion to their numbers, is fairer (in our sense) than the winner-take-all scheme our instincts prefer, which denies many people any influence at all over an issue they think desperately important.

Still, Dworkin thinks, there’s something that rubs us the wrong way about such a compromise. We seem to reject the Solomonic solution of simply cutting down the middle and giving both sides a little of what they want. So what explains our discomfort? Why is this kind of “fairness” not enough? Why do we turn our nose up at “checkerboard solutions” like this one?

Certainly, the decision to kick the abortion question to the state legislatures looks an awful lot like a checkerboard solution – and one that sits uncomfortably with both sides.

It’s hard to see how that ruling fits within our judicial history that treats similar rights (similar to either the right to reproductive autonomy or the rights of the fetus) as national concerns. Such a ruling appears a significant break with traditional practice.

Just last week, Benjamin Rossi gestured at several potential futures for the current political compromise neither side finds tolerable. Pro-life advocates motivated by Body Count Reasoning (explained here by Dustin Crummett) are unlikely to be satisfied with half-measures. Meanwhile, pro-choice proponents decry the unequal burdens arbitrarily foisted upon residents of different states concerning a basic good: health. (Jim Harbaugh can encourage his players to encourage their partners to go ahead with an unplanned pregnancy and offer to adopt all those children all he wants, but the fact remains that pregnancy is not without risk and the decision to go forward is not simply about whether one has “the means or the wherewithal.”)

Unfortunately, whichever way the Dobbs fallout is eventually resolved is likely irrelevant to the larger problem. Unless and until we begin to conceive of our legislative and judicial history as a shared project of public justification, there will be no restoring public faith. Without courts committed to something like Dworkin’s idea of integrity, even term limits cannot save us.

Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

Under Discussion: Voting Best Interests and Democratic Legitimacy

image of hand placing checked ballot in ballot box

This piece concludes an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

Since the rise of democracies centuries ago, the concern over the rationality of the voting population has been a central one. Winston Churchill famously quipped, “Democracy is the worst form of government, except for all the others.” And recently, ethicists and political theorists have studied and analyzed the motivations behind voters who vote in ways that don’t align with what appears to be their best interests. (In the 2016 presidential election, the examples seemed particularly stark.) Jason and Cecilia Rochester, for example, are not alone in voting for Trump and then having their family feel the tragic effects of Trump’s trade policies. Yet still they voted for Trump, who was clear and adamant about his views on immigration and open about his xenophobia towards Mexicans. Farmers who voted for Trump ended up being harmed by his trade policies. In fact, they were the biggest business to suffer from his China trade deals.

But there are a handful of complications surrounding the common criticism that people often fail to vote in support of their best interests.

First, in attending to the resulting government that democracy produces, we can blur the differences between the various forms of government. In other words, if the principal value government is to produce a political system that reflects the “people’s best interests” (whatever we decide that is), then it isn’t clear that democracy would do a better job at this than the other structures. Democracy is often lauded as being more stable than governments that aren’t formed with the consent of the people; it is a platitude that power corrupts, after all. As 1991 Nobel Prize laureate Aung San Suu Kyi said of democracy, “Democracy is when the people keep a government in check.” But there are other mechanisms that might keep a government in check, and it’s possible that these alternative structures could have substantive standards for leaders resulting in a government that represents the interests of the people better than representative democracies at least for stretches of time, and at least better than some assessments of the US.

Second, in explaining why people vote against their best interests, it is difficult to assess others’ preference orderings. For example, if someone were to vote for a representative because they ran on trade principles that seemed right and just, but would have predictable negative effects on the voter’s family, community, and state, how would we characterize this vote? It aligns with their preferences, but perhaps not in their “best interests” if we conceive of these as their immediate economic considerations. To have a “right” outcome in mind when evaluating others’ voting choices inevitably reveals bias in how we think voters should make their decisions. Put more plainly, choosing against some conception of your best interests shouldn’t undermine the validity of your choice. And because the legitimacy of democratic authority rests in the consent of the governed and not in the outcome being a particular right answer, features of decision-making that undermine consent may be more concerning.

Say I’m deciding whether or not to go spelunking. There is a spelunking company that will take and train amateurs that I’m considering signing up with. There are the standard pros and cons of spelunking, including risk, cost, joy of discovery, endorphins resulting from exertion, becoming a member of the spelunking community, etc. These factors could not match up very well with my preferences and values in a variety of ways. It could shake out that spelunking would not be a great option for me, given my lack of focus and, to be honest, a bit of claustrophobia. This could sharply contrast with how my friend’s temperament relates to the pros and cons of spelunking, given that she is an adrenaline junky and enjoys exercise of any kind.

However, I decide to go spelunking anyways. It could be foolhardy of me, or perhaps even worthy of disdain, given the fact that I’m likely signing up for a rather bad time of it. But these aren’t criticisms that seem to target whether I’m consenting to take up the enterprise. What features of the case relate to that?

In most cases when a company takes an amateur into a risky situation, like spelunking, base-jumping, rock climbing etc., there is some sort of contract for one thing. In addition, there is usually some sort of required orientation, perhaps simply in order to sufficiently understand the contract. Underlying these features is the standard that you know what you’re getting into.

Many things could play a role in my decision to spelunk without knowing the pros and cons. I could simply not have done sufficient research to know how they line up with my preferences, or I could have been misled by the information misrepresented to me. But it would undermine the consent I am giving to go spelunking if I didn’t know what the basic pros and cons of spelunking were.

But the view that, if we were to deliberate, we would only do what is in our best interests is an overly idealized one. I could decide to spelunk with all the information, and people do things that are irrational, silly, and self-destructive with all the information. However, when we don’t understand the nature of our choices, the connection between our deliberation and the choice we make is undermined. The above example highlights how ignorance is one of the features that can undermine consent.

Because democracies ground their authority not in the result, but in the procedures of their functioning, the connection between the voters and the system is what is important. The danger in a democracy is not instances of people voting against their best interests, but whether they understood the stakes and what they were getting themselves into at the time. This locates concern for democratic legitimacy in misinformation and ignorance of voters.

There is good reason to attend to this concern, as evidence suggests ignorance is promoted by representative democracies and that misinformation has been on the rise in the past decades due to social media and digital communication. In particular, the degree of ignorance and misinformation in this election has created something like multiple realities that make decision-making difficult. For instance, consider the perspectives on the state of our economy.

There are many different views on the state of our economy, the role the president has had on the state of the economy, and the candidates plans for the future of the economy. Now, as in 2016, these perspectives play important roles in determining many voter’s decisions. In 2020, we add the economic fallout of the pandemic where we have experienced the worst unemployment rate since the Great Depression, the prediction that 1 in 5 small businesses will close if economic conditions don’t improve in the next six months, and over half of business that have shut down on Yelp say they will not be able to reopen.

It is worrying that such an important aspect of the functioning of our country, and a divisive feature of the candidates’ plans for our nation, can’t begin to be discussed with anything approaching common ground due to different characterizations of the state of our economy.

Ignorance about the reality of our economy is not something new. In 2011, a Harvard business professor and a behavioral economist surveyed Americans about their perspectives on wealth distribution in the US. It highlights the difference between the perception of people in the US from the reality of wealth distribution:

Thus, not only are we currently engaging in public discourse where different groups of people have streams of information that characterize the health of our economy differently, from a non-partisan perspective, we are starting from a skewed understanding of the distribution of wealth. This is reflected in the controversial characterization of socioeconomic class in a recent New York Times article categorizing a family of four making $400,000 as “middle class,” and Vice Presidential candidates engaging in a he-said, she-said about specific economic policies.

Starting from misinformed, misled, or otherwise ignorant positions is a significant threat to the procedures that are meant to grant government authority in democracies. The legitimacy of their power comes from the connection with the deliberation and voting choices of the people. While our votes often appear to conflict with our interests, their weight becomes meaningless if we don’t know what it is we’re endorsing.

Under Discussion: Are Liberalism and Democracy Fundamentally at Odds?

photograph of wooden pins representing peoplewith majority in support and a handful opposed

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

“Liberal democracy” is a phrase so commonly trotted out in discussions of types of modern political regime that one could be forgiven for thinking that its components — liberalism and democracy — fit together hand in glove. Yet this is far from true. The U.S. Constitution represents an uneasy compromise between liberalism and democracy, and many of the thorniest political problems the U.S. has faced derive from the fundamental tension between them.

Liberalism is a political philosophy that makes the individual and her freedom the locus of value. According to liberalism, the basis of the state’s right to use coercive power is that such power is necessary to secure the freedom of the individual against the depredations of others, including the state itself. By contrast, the practice of democracy is undergirded by an ethical commitment to the principle of majority rule — the idea that the basis of the state’s moral right to use coercive power is the mandate of the majority of the people.

In a liberal democracy, then, we have two uses of state power that count as morally legitimate: to secure or enhance freedom, and to enact the will of the majority. But these two uses can sometimes point in different directions. On occasion the majority wishes to reduce freedom — usually, the freedom of a minority. For example, segregation in the U.S. South represented the will of the white majority imposing limitations upon the freedom of the African-American minority. In such circumstances, there is a clash between the idea that majority rule makes political power legitimate, and the idea that political power cannot legitimately be used to restrict freedom. The key question in such cases is whether freedom ought to triumph over majority rule or vice versa.

The Founding Fathers were liberals and democrats, which is why they created both democratic institutions and institutions to serve as bulwarks against the popular will. For example, for all practical purposes the Bill of Rights takes questions of fundamental individual liberty off the democratic agenda: there will be no vote on the right to free speech (thank God). Meanwhile, the judiciary acts as a counterweight against democratic majorities when, through their representatives, they enact legislation that undermines the rights enshrined in the Constitution.

Today, those on opposing sides of many of the most controversial issues in U.S. politics will invoke the two legitimate uses of political power to ground their positions in widely acknowledged political values. Consider two culture war issues, abortion and gay marriage. Liberals say that they find within the Constitution a guarantee of women’s freedom to choose and homosexuals’ freedom to marry. Thus, they argue that state legislatures cannot legitimately prohibit these activities, even if the majority of people in the states are against them. On the other hand, invoking the legitimacy of majority rule, conservatives urge that these issues ought to be brought up for a vote in each state. At the same time, liberals will also point to the majority of Americans who support legalized abortion in favor of their position, and conservatives will oppose gay marriage on the grounds that it impedes the free exercise of religion. It’s interesting to note that essentially the same arguments — freedom versus the will of the majority — were made by the advocates and opponents of desegregation in the 1950s and 1960s, or the radical Republicans and Southern Redeemers in the 1860s and 1870s. We will probably see the same pattern repeat itself in debates over transgender rights, drug legalization, and other issues in the coming years.

As my potted history suggests, the trend over the last sixty years has been toward greater freedom and less majority rule. The courts have interpreted the Constitution as a broad guarantor of individual rights, regardless of the people’s desire to abridge those rights. But this may be changing. With the U.S. Supreme Court becoming more conservative, we may see a rollback of Constitutional guarantees of certain individual rights. The trend of finding individual rights in the Constitution, and of continually broadening the scope of federal government protection for those rights, will be reversed. In effect, the courts will throw these issues back to the voters through their representatives in state legislatures.

Is this a welcome development? On the one hand, it will mean that many states will not recognize what many believe are important individual rights, such as the right to control one’s reproductive life through the use of safe abortion. On the other hand, it will mean that people will live as the majority of their co-citizens wish them to live, at least with respect to certain important choices in their lives. Democrats (of the small ‘d’ variety) might find in this reason to celebrate.

Indeed, the slide toward illiberal democracy appears to be a world-wide phenomenon. Illiberal democrats reject the liberals’ view that securing and enhancing freedom is a legitimate use of state power. Philosophically, they recognize only the legitimacy of majority rule, and they use democratic tools, such as referenda, to legitimate policies that strip minorities, political opponents, and ordinary citizens of their civil and political freedom.

But for all that liberalism and democracy can be at odds, the fusion of the two appears to be a relatively enduring and equitable model. Individual civil rights like free speech encourage more effective democratic deliberation and encourage participation in the political process. At the same time, insofar as liberalism is embraced by the majority, it is further legitimated by that very embrace.

Still, the potential for disharmony between the fundamental tenets of liberalism and democracy means that liberal democracies are never free of deep controversies that can tear at the social fabric. As we continue through this period of both internal and external instability, that potential is more likely to come to fruition as the will of the people becomes increasingly antagonistic toward the freedom of the individual.

Is the Filibuster Democratic?

bird's eye photograph of Maryland state senate chamber

A wide range of policy debates has already dominated the front lines of the 2020 Democratic Primary over proposals including Medicare for all, raising the national minimum wage, and mandating an increase on teachers’ salaries. However, another emerging policy proposal that has gained some attention in recent months is abolishing the use of the filibuster to block legislation in the senate.

Filibustering is a tactic frequently used by senators in which they can prolong debate over a bill almost indefinitely simply by holding the debate floor for as long as they can, thus effectively blocking the bill. A filibuster may be sustained even if the senator is discussing a topic other than the legislation at hand. For instance, in 2013 Sen. Ted Cruz held a filibuster against a version of the Affordable Care Act for 21 hours and 19 minutes by doing things such as reading bedtime stories to his two young daughters and announcing messages that had been sent to his Twitter account. The only formal way to stop a filibuster is for the senate to vote in favor of “cloture,” which requires a three-fifths supermajority vote (or 60 votes out of 100). A filibuster may also be stopped by more informal means if a senator must stop debating to use the bathroom or to sit down.

As a function of the senate, the filibuster is very well-established, making it a tradition that is rarely evaluated. However, new Democratic candidates are beginning to question whether or not the filibuster truly helps senators represent their constituents. Answering this question may require consideration of historical context.

The first effective filibuster was “discovered” in 1841 by Alabama Senator William R. King when he threatened an indefinite debate against Kentucky Senator Henry Clay over the creation of a Second Bank of the United States. Other senators realized there was no rule mandating a time limit for debate and sided with Senator King. Although it had been discovered, this did not make filibustering a common practice in the senate. Indeed, the cloture rule was not established until 1917 when a group of just 11 senators managed to kill a bill that would have allowed President Woodrow Wilson to arm merchant vessels in the face of unrestricted German aggression at the dawn of U.S. involvement in World War I. Even so, filibustering still did not establish itself until 1970 when the “two-track system” was implemented in the senate. The two-track system allows for two or more pieces of legislation to be on the senate floor simultaneously, with debate divided up throughout the day. This made filibustering much easier for senators to maintain, as they could filibuster one bill without halting Senate activity altogether. From this point forward, filibustering became increasingly more common in the U.S. Senate. However, from its history, it is clear that the filibuster is not a long-time tradition of the senate, but rather a loophole in senate rules that gained popularity as a strategy for obstruction of bills. Yet, many believe it to be an indispensable function of senate rules.

Many senators would argue that filibustering is necessary to adequately representing their states’ policy needs. Its primary purpose is to balance tyranny by the majority and preserve minority rights in the senate. Take the gun control debate as an example. Senate Democrats have long pursued reforms on gun laws through the senate but have had little to no success due to Republicans holding the senate majority and not allowing gun reform legislation to even reach the floor for a vote. Therefore, Democratic Senator Chris Murphy of Connecticut filibustered for 14 hours and 50 minutes in the wake of a mass shooting at Pulse nightclub in Orlando, Florida. The filibuster swayed Senate Majority Leader Mitch McConnell to hold two votes on gun reform: one proposal to expand background checks for potential gun owners, and another proposal to block suspected terrorists from purchasing guns. In this case, the senate minority was able to come together and prevent cloture on an issue that they could otherwise not have pursued due to senate rules. It is instances like these that lead many to call the filibuster the “Soul of the Senate” and praise the filibuster’s ability to encourage more in-depth debate on highly-contested issues. However, others take issue with the the way the filibuster is used.

While the filibuster balances the power of the senate majority, this function can also be limited. This is because the Senate Majority Leader must approve bills before they are brought to the floor, meaning that senators in the minority must beg the Senate Majority Leader to introduce a piece of legislation to the floor before they can even initiate a filibuster. In a highly polarized senate, where current Majority Leader McConnell controls the floor ruthlessly, even getting a filibuster started is extremely difficult. Despite this, there are still some who argue that the ability to filibuster gives the senate minority too much power. The primary reasoning behind this argument is that cloture and its 60-vote requirement are difficult to acquire, especially through rampant hyperpartisanship that currently exists in the senate. The possibility of a filibuster essentially sets a supermajority requirement on all major pieces of legislation, thus hindering congress’s productivity. The senate minority’s ability to filibuster also gives unpopular policy proposals more time over senate proceedings than they should have. A prime example of this was in 1964 when a small coalition of Southern Democrats filibustered the Civil Rights Act for 75 hours.

Beyond giving the senate minority too little or too much power, it is also alleged that the filibuster is applied unevenly between political parties. While filibustering does alternately inconvenience one side or the other depending on which party holds the senate, fundamental parts of Democrats’ and Republicans’ platforms allow the filibuster to disadvantage Democrats more in the long run. The modern Democratic party tends to push policy that introduces new or enhances existing government programs, while the Republican party leans on a platform of blocking these programs and cutting taxes. Republican policies of blocking social welfare and cutting taxes are more compatible with the budget reconciliation process than are Democratic policies. Because filibustering is not allowed in the budget reconciliation process under senate rules, Republicans can easily push their agenda through reconciliation, while Democrats are left to struggle for a 60-vote supermajority to advance most of their legislation.

Whether it should be retained or scrapped, what is most important is that the filibuster is under public scrutiny by high-profile politicians. As injustices in America’s legislative mechanisms become more apparent, public criticism of these mechanisms has also become more popular. Along with debating over the pros and cons of the filibuster and its implications for democracy, presidential candidates for 2020 are also entertaining drastic structural reforms such as doing away with the Electoral College, increasing the size of the Supreme Court, and offering statehood to Washington, D.C. and Puerto Rico. Whether people believe these reforms are operational or not, the public discussion around taking fundamental action to make the U.S. legislative process more democratic and representative is one that is well worth the nation’s effort.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.