The Senate confirmation hearings for Amy Coney Barrett may lack for political drama, but they are still instructive. They are revealing the deep fault lines over the Supreme Court, and how Democrats view it as a mini-legislature to achieve policy goals, rather than a real judicial body.
Democrats are asking very little about the actual law or Judge Barrett’s jurisprudential thinking. Instead, one after another, Democrats have used their time to focus on a parade of policy horribles if she is confirmed. And for emotional effect, they brought along photo displays of children and women who would supposedly be her victims on health care, abortion, gun violence and more.
All of this distorts the role of a judge, who has to rule based on what the law is, not on what she would want it to be. “Judges can’t just wake up one day and say ‘I have an agenda. I like guns. I hate guns. I like abortion, I hate abortion’ and walk in like a royal queen and impose their will on the world,” Judge Barrett said Tuesday. But that is lost on Democrats, who are treating the hearings like a campaign rally.
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Start with their focus on Judge Barrett as a threat to health insurance. Republican state attorneys general, joined by the Trump Administration, argue in a case that the Court will hear on Nov. 10 that the Affordable Care Act should be struck down. Recall that Chief Justice John Roberts in 2012 upheld the individual mandate to carry health insurance as a tax. But the 2017 tax reform zeroed out the financial penalty for not being insured. The AGs say that because there now is no tax, the entire law should be struck down.
As we’ve argued, the AG suit is political and legal malpractice because the lawsuit has almost no chance of success. Three conservative Justices have suggested in opinions this year that they are wary of throwing out entire laws due to discrete constitutionally defective provisions, and with good reason. The vote could be 9-0.
Yet Democrats assert that Judge Barrett’s appointment to the Court would threaten protections for millions of Americans with pre-existing conditions, insurance coverage for young adults, free mammograms and birth control as well as lead to higher prescription costs for seniors. “It’s all at stake,” Kamala Harris declared.
Imagine if GOP Senators displayed photos of crime victims for a Democratic nominee who had overturned a conviction on appeal? They would be skewered as demagogues.
California Sen. Dianne Feinstein asked how Judge Barrett would handle the ACA’s lifetime coverage caps. Judge Barrett duly noted she would consider this like any “issue that would arise under the Affordable Care Act or any other statute should be determined by the law—by looking at the text of the statute, by looking at precedent.” Good answer. Coverage caps are a policy issue for Congress.
Democrats also flogged Judge Barrett for criticizing the Chief Justice’s creative interpretation of the individual mandate as a tax. She joins a long queue there. But Judge Barrett replied: “I am not hostile to the ACA. I am not hostile to any statute that you pass. . . . I apply the law. I follow the law. You make the policy.” She also said “reliance interests,” such as the number of people who gained insurance under ObamaCare, have to be considered now that the law has been in place for six years.
Democrats also distorted the risks that the Court will overturn Obergefell v. Hodges that divined a right to same-sex marriage in the Constitution because Justice Antonin Scalia dissented and Judge Barrett was his clerk. Yet Justice Scalia dissented because the Court was imposing policy preferences by diktat.
As he explained, “the substance of today’s decree is not of immense personal importance to me,” but the judiciary’s hubris in divining a new right signified “that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
He was right then, but tens of thousands of same-sex Americans have been married since Obergefell. This is the definition of a “reliance interest,” and conservative judges take it seriously. There is no way a conservative Court is going to invalidate those marriages.
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The current “conservative” Court has already shown it is more heterodox than one dominated by liberals. That’s because originalists seek to interpret laws based on the text and the Constitution rather than merely find a way to arrive at a foregone policy result. Everything we know suggests Judge Barrett will rule in the same originalist way, and this should reassure the public that the Court will be properly modest in interpreting the law as it is.
Democrats are doing a great disservice to the law and judiciary by treating these hearings like an emotive political ad. They are telling voters that the courts are nothing more than another arena for political disputes. Keep doing that and soon the Supreme Court will be as unpopular as Congress—which may be their real goal as they prepare the ground to pack the Court next year.
What a strange moment this is for mounting a defense of civility! The United States has just weathered its most significant violent protest activity in decades, and Americans are in the midst of bitter fights about nearly everything else: politics, sex, religion, law, face masks. Present conditions seem to militate against civil behavior, and many people are eager to point this out.
“Civility is a tool of the oppressor,” observes Anthony Clark on Twitter, that most uncivil of all digital platforms. Writing in The New York Times, Thomas Sugrue asserts that “the path to change is seldom polite.” And this from Hillary Clinton: “You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That’s why I believe, if we are fortunate enough to win back the House and or the Senate, that’s when civility can start again.”
The “virtue of civility,” as Edward Shils once designated it, appears to be decidedly out of fashion. From one point of view, civility is no virtue at all, but something that the powerful classes use to dominate others. It implies manners, politeness, good breeding, hierarchy, privilege, restraint, inauthenticity, and perhaps dishonesty. Civility does not serve the good of society but oppresses those who are less fortunate, less wealthy, less well-positioned. It is manipulative condescension.
Modern revolutionaries reject such privileged politeness in favor of activism and the absolute moral clarity that it requires. The silence that sometimes accompanies civility is now “violence.” Only incivility leads to social justice. Following Herbert Marcuse, many writers argue that old-fashioned notions of civility, tolerance, and free speech cannot themselves be tolerated because they allow for hurtful and “unsafe” discourse.
People are justified, opined Marcuse in 1965, in tuning out or preventing the supposedly hurtful and hateful speech that emanates from conservatives. Toni Morrison expressed this same idea vividly in her 1993 Nobel Prize acceptance speech: such language “drinks blood, laps vulnerabilities, tucks its fascist boots under crinolines of respectability and patriotism as it moves relentlessly toward the bottom line and the bottomed-out mind.” In recent months and years ideas like these—formerly considered radical—have moved into the mainstream of American life.
Other contemporary conditions encourage incivility too. People who would never dream of being rude in person will guiltlessly harass others while driving, and the anonymity of social media encourages personal attacks in the same way. If people are reduced to “vectors”—mere carriers of inconvenience or obnoxious views—it is easy to objectify and harm them. The Golden Rule seems less imperative when we are not looking at someone in person, observing their vulnerabilities and virtues in the flesh.
Abiding Challenges
Despite all these transformations of recent years, certain fundamental human characteristics have not changed. Notwithstanding our increasing anonymity on digital platforms, we are still embodied creatures who require social contact and friendship. Though we are politically polarized, we still need education and conversation to help us understand what we really think, and where and how we might moderate our views. All of us crave the love and respect of certain others, even if we present a bold and unflinching persona in the face of attack. Civility plays a crucial part in obtaining all these human goods, and we must recognize and cultivate it especially in times, like our own, of deep disagreement and political warfare.
When we think of the word itself—civility—we often understand it only in its barest sense. It may appear as the icy civility of the doyenne or in the command, “Please be civil!” Civility is here only a negative virtue, something that papers over an underlying distaste or anger. Or it may be an affected attitude: of course I am capable of being civil to someone, but I do not really respect him and the civility is only an act. Just beneath the surface is a barely concealed contempt.
A great tradition of writing, however, testifies to a much more capacious understanding of civility. Against all the modern criticisms of civility—that it is mere pretense, a mask for privilege, an inauthentic and insincere mode of domination—I want to offer a modest defense.
First, civility is an embodied characteristic and a disposition. Second, it arises out of a long tradition of moral and political thought about desirable human interaction. Third, the contemporary American political situation demands civility both because we are so politically fractured and because civility points beyond itself to modes of life that are not themselves political. Finally, the virtue of civility is best taught and modeled in families.
Civility as a Democratic Virtue
What does it mean to say that civility is an embodied characteristic? In modern usage civility has mostly to do with language, and civil behavior is thought to begin and end with speech. But conduct books of the 16th century, the most famous of which is Desiderius Erasmus’ A Handbook on Good Manners for Children, offer a far broader view. Civility concerns the whole person, and Erasmus is amusingly and sometimes embarrassingly specific about what good behavior entails. “The nostrils should be free from any filthy collection of mucus, as this is disgusting,” he writes. And in perhaps the earliest articulation of the double-dipping rule, “It is boorish to redip half-eaten bread into the soup.”
Erasmus’ point, however, is serious: a primary aim of civil behavior is to control one’s own body and general demeanor so that others can be at ease around us. And so far from recommending good manners only to aristocrats, Erasmus maintains that acting civilly is actually an elevating practice for everyone, no matter one’s station in life: “No one can choose his own parents or nationality, but each can mould his own talents and character for himself.” Civility is a democratic virtue, which incidentally also requires individual judgment. Although people have written countless books of manners, we all must interpret these in light of our own circumstances. We learn civil conduct in a process of self-enactment that begins in childhood and ends only in death.
The point here is that civility is a disposition that potentially can be mastered by anyone. It concerns the entire person—body, mannerisms, and speech—and it signals respect for oneself and others. Civility here is graciousness and courtesy, kindness and respect, other-regarding action that greases the wheels of human interaction. To use an anachronistic formulation, much loved by old-school parents but hated by contemporary radicals and gender theorists, civility means acting “like ladies and gentlemen.”
Civility is not much prized in our revolutionary climate because it is a deeply traditional practice. Its emergence can be traced to ancient virtues. For example, in Plato’s Protagoras, the sophist Protagoras relates a founding myth that explains the origins of civilization in terms of Zeus’s gifts to mankind of aidōs and dikē. Dikē denotes righteousness or justice, and aidōs is roughly translated as reverence, respect or “a sense of honor.” Aidōs is the “social virtue par excellence,” according to scholar Douglas Cairns. It is a character trait that encompasses “a sense of the ways in which one’s own honour and status are bound up with those of others.” Importantly, Zeus gives aidōs and dikē not just to one person or a few, but to everyone, because without these twin characteristics, flourishing political societies cannot exist.
Aidōs and dikē are not present in the relationships of romantic love or kinship but in something like “political friendship” or, perhaps more to our point, civil association. These characteristics facilitate commodious living among people who are both like and unlike us. Aidōs in particular helps us to recognize our place among others and, in turn, our obligations to others. The pursuit of justice without the tempering forces of obligation and respect for one’s fellows can quickly turn into Jacobinism.
More familiar than aidōs and dikē are the Christian virtues of charity and humility, which probably underlie any sincere practice of civility. Of course, one need not be a Christian to be civil. Yet civility’s respect for others makes sense when the Christian virtues are fully activated. Both charity and humility are “other-oriented” and both can be quite difficult, especially if the others in question are not charitable in turn but hateful. Some such notion of these Christian virtues is implied by Erasmus in his account of civility, when he observes that its essence “consists in freely pardoning the shortcomings of others although nowhere falling short yourself.” If this is impossible to attain in practice, it is not a bad goal.
There is also an aspect of civility that is unfashionably “passive,” in terms of the original meaning of passive, which implies suffering or submission. Civility in its highest sense might even be a love of neighbor and a willingness to sacrifice for him. At a minimum, civility asks that we be willing to listen, to consider, to be led to new positions, to give the benefit of the doubt, to be self-effacing, to put others first. These character traits are probably not natural to human beings, given how self-focused we often are. But they are well worth cultivating and modeling.
Necessary Incivility?
Can this disposition really be sustained in our current political climate? I have often heard people say that the passivity and restraint of civility are not only ineffective in the present moment, but that activism must be met by counter-activism. This criticism comes not just from the political Left but also from the Right. Some issues are so important, people say, that we must suspend the rules of civility until we win this or that particular battle.
The problem with suspending the rules of civility is that presumably we will all be around after the battle is over. What happens when one side has won? Will the tactics employed in winning have made the victory worthwhile? Will the winners restore civility, or will they decide that the losers, having held the wrong ideas, must be dominated and forced into submission? These questions highlight the problems with political warfare within a country, just as in a marital fight or neighborhood dispute. What was said in anger and frustration will not be forgotten, and all the participants must still live together. The insults will often outlive the battle and poison the community, foreclosing the possibility of connecting in other ways.
This outcome is precisely what the American constitutional order was designed to prevent. Recognizing the universal inclination toward excessive self-interest, Alexander Hamilton pleaded for moderation (and implicitly, civility) in Federalist 1. There he lamented that political parties would likely “hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.” Yet he knew that in politics, “as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.” Thus Hamilton and others advocated for a system in which power checked power, and no one person or branch of government could dominate opponents in this way.
The deliberation and patience required by the American system have always frustrated ambitious politicians, particularly those who wished to implement their ideas quickly and efficiently. But James Madison knew that factions existed in his day and would continue to grow as population increased.
The pluralism that now exists in the United States is certainly beyond anything Madison could have imagined, and the virtue of civility is importantly precisely because we now live in the midst of astonishing moral extremes. It is easy enough to be civil with people one likes and agrees with already, as among a group of friends or in a religious community. But when we live with people whose views radically diverge from ours, then civility becomes both more difficult and more important. When a conservative evangelical Christian interacts with an LGBTQ activist, a climate-change skeptic with an environmentalist, a Trump supporter with an intersectional feminist—in all these cases civility offers a potential mode of relationship that promotes civilization, not barbarism, with its continuous war and hatred.
We often forget this in the heat of anger, because so many of us are inclined to see the whole business of life as a succession of political battles, and to think of ourselves primarily in the terms of our political positions. We all know the labels: feminist, conservative, libertarian, progressive, environmentalist. This is an impoverished view of human possibilities, a unimodal understanding of life that attends only to the good (the moral and political) while ignoring the true and the beautiful.
Civility helps people to weather political differences with grace and it allows us to find common ground with others in realms of life that are not political at all. These other realms are arguably more important than politics. A conservative and progressive, for example, may discover that despite deep ideological disagreements they both love to cook or garden, or that their children have become best friends, or that they love each other’s sense of humor. Civility is essential to such relationships because it intimates where and where-not to go in conversation, where to be silent and where it would be acceptable to disagree. The practice of civility opens us to a host of relationships that would otherwise be impossible.
A Culture of Suspicion
Even the modern diversity mandate pays homage to civility, though diversity proponents may not fully realize this. In essence they are trying to inculcate their own scripted version of civility through “trainings” where people are taught not to be sexist and racist boors. The implicit assumption of diversity trainers is that people are not civil enough—indeed that they are often so uncivil that they even engage in unconscious incivility through microaggressions. The solution? More trainings, where civility is not taught in a holistic, natural way but by acquiescing to various well-intentioned (one assumes) restrictions on speech and action.
Interestingly, the “microaggression training programs” instituted at many schools and businesses are strange perversions of civility. Instead of assuming the best of others, we are taught to conclude that offhand comments are attacks, that certain people are “victims” and their interlocutors are “perpetrators.” It isn’t clear how the hostile assumptions of this linguistic framework could ever foster trust and goodwill among diverse people who must live and work together. Phenomena like this demonstrate that progressive administrators, who have won the battles of institutional dominance, wish to impose their visions of the good on everyone else. They understand themselves as promoting civility, but on their own terms, and with punishment for those who object. To the victors go the spoils.
In truth, real human diversity is far more interesting and wide-ranging than merely the currently-favored categories of race, gender, and sexuality. People vary in terms of interests, geographical origin, politics, music and food preferences, religion, morality, and aesthetics. We embody both reason and emotion, we use language and have the capability to persuade, and we can listen and apologize. Of course identity is constituted partially by demographic categories, but it is ultimately more than and often distinct from these categories. It is a sense of humor. A cutting wit. A quiet intelligence. A kind spirit. A willingness to listen. A generous host. An enormous talent. A creative mind. An incredible athlete. The possibilities are infinite. And a habit of civility gives us the ability to meet, interact with, and appreciate all these diverse types of human beings.
Now, at last, to the practical question. How do we learn civility? How do we enter into the difficult business of judgment, of weighing better and worse in any given situation? Here again an ancient tradition is instructive, and there is no better guide than Aristotle’s Nicomachean Ethics. The moral virtues are not implanted in us from birth, Aristotle maintains, but are learned through observation, repetition, and doing things for oneself so that they become habits of character.
The power of habit is most evident when we lament the difficulty of changing a bad one. Perhaps we eat or drink too much, or are prone to anger or envy. In times like these we see the difficulty of changing our habits once they have become thoroughly engrained. Aristotle explains this by observing that once you have let a stone go “it is too late to recover it; but yet it was in your power to throw it, since the moving principle was in you. So, too, to the unjust and to the self-indulgent man it was open at the beginning not to become men of this kind, and so they are unjust and self-indulgent voluntarily; but now that they have become so it is not possible for them not to be so.” A depressing doctrine, to be sure, which is not in fact Aristotle’s final word on the matter. In the Categories, he argues that moral progress is actually possible.
The point, however, is that habits are powerful things. And if cultures are formed on explicitly uncivil habits—as they increasingly appear to be among the young on college campuses and Twitter—then we have not one uncivil person but masses of them, who understand incivility as a virtue. These people operate on the basis of emotions: righteousness, anger, pleasure, outrage. Those who disagree are not people with legitimate alternative views, but enemies. How do we teach such people habits of restraint, deference, patience and circumspection now?
I was reminded of the difficulties of inculcating habits when I recently began to teach my six-year-old daughter how to play checkers. She first had to learn that the different colors of the pieces denote different “sides” of the game; that she was red and I was black. Then we moved to the different colors of the squares on the board. The white squares are off-limits; moves can only take place on the black squares, which creates a set of diagonal possibilities. If you move in certain directions, your opponent is required to take your piece. But you often have choices about where to move, though each of those choices has consequences, which are hard to predict until you have considerable experience.
I watched her take this in, and marveled at the difficulty of learning such a complicated game. I had to show her that her self-interest needed checking. I reminded her that no, she couldn’t move in straight lines across the board, and no, she couldn’t move her pieces backward. She couldn’t play two moves in a row even if she saw her next move and it looked really, really good. She was, in a word, constrained. She bridled at that.
I wondered how she would get better at checkers, and I saw that it would only be by playing with me and others. She will improve by trying moves, by learning what works and what does not, by listening to others judge her moves, by taking advice, and by making mistakes. She will see that certain moves facilitate better outcomes in the long run. Other moves, though they might look good at the moment, set her up for disaster. She will need to lose with grace and win with grace—not an easy task for anyone.
This is an imperfect analogy. Civility isn’t a game with a winner and loser. But it is a practice, and like so many important practices it is best taught and learned in families. The reasons for this are obvious: when we are young we spend most of our waking hours with our families. Family members are also inclined to forgive and offer second chances, because presumably they love each other. The cost of an uncivil remark is usually not the severing of the relationship.
Civility and Love
This points to perhaps the best reason for learning civility in families: though we may love our family members dearly, our relationships with them are not always smooth or easy. We would do well to remember that one of our sisters always gets angry when we talk about environmental politics, or that our brother becomes anxious at the mention of finances, or that our parents have never understood what drove us to that bad decision about a college major or why we got that dragon tattoo on our left shoulder.
The point is that the enduring relationship of family is more important than argument and absolute moral clarity. It is a certain kind of civil association. In family relationships, we practice forbearance, tolerance, and self-restraint. We learn what we can discuss, and what is better left unsaid. In the end, we must all live together in a kind of little society, and so we do our best to hammer out practices of civility that work for everyone. Is it perfect? Of course not. But peace and civil interaction are better than the endless dissatisfaction that comes with seeking some imagined better situation. This little society of the family is a model for what we might aspire to in public life. Because it has limited and modest aims, this politics of civility is at odds with the demands of ideological politics, the “politics of perfection.”
Compared to the grand imperatives of ideological politics, civility may seem modest and uninspiring—politics for the middle-aged. No defense of civility will convince the young and woke or the purveyors of righteous opinion. But many other people do admit their human limitations, live more or less contentedly within the pluralism of American society, and see that life’s possibilities are not wholly exhausted by political action. For all of us who understand our real work as the protection, preservation and renewal of institutions, cultivating the civility I have described is not an insignificant achievement.
