"We may disagree, but we're listening"
Two Supreme Court justices make a case for less division.
The National Governors’ Association asked me to talk about Differ We Must at their winter meeting last week. In a hotel ballroom well underground (when it was time to go, it took me a moment to recall how to get out) I discussed my day job as a journalist and my night job writing history. Or rather my before-dawn job as a journalist and my afternoon job writing history. In any case, both were relevant, because the NGA’s long-running theme is “Disagree Better.”
In an address to Republican and Democratic governors’ staffers, public officials, corporate sponsors and others, I read aloud from a post on this very Substack, “How to Cover 2024,” in which I said we didn’t need new standards for journalism, but “to meet the highest standards that we already have.”
I added: As a journalist, I want to hold governors and others accountable for what they actually say and do, rather than what they sort of say and do. Many divisive political debates involve one side taking the worst possible interpretation of the other side’s words. These debates often feel to me like they’re about nothing. As a citizen, I’d rather engage with what’s really there.
I also talked about Lincoln as depicted in Differ We Must: a politician who worked to assemble a majority, even when it had to include people he considered to be wrong.
One example from the book is a letter that Lincoln wrote to be read aloud at a mass meeting of his critics in Springfield, Illinois. It was 1863, and Lincoln knew that many people in his conservative state opposed his recent Emancipation Proclamation. He also knew he really needed their votes for re-election in 1864.
Under pressure, Lincoln did not abandon his commitment to emancipation. He also did not try to persuade his white audience to abruptly change their longstanding racist views of Black people. He aimed instead for a more achievable goal. He reminded voters of a truth: that Black men freed from slavery were joining the Union Army and helping to win the Civil War. Even if white voters did not like racial equality, a measure of equality served their interests, and the national interest.
There are no data to prove this particular argument worked or didn’t work, except that Lincoln won Illinois in 1864, and the presidential election along with it. Lincoln got good votes out of people with bad ideas.
When my session ended, I accepted an invitation to watch the next session at the NGA meeting: a joint discussion on stage with two Supreme Court justices, Sonia Sotomayor and Amy Coney Barrett.
The contrast between the two was striking. Sotomayor brought the sound of New York to the stage, pronouncing “saw” as “sawr;” Barrett’s voice carried touches of her native Louisiana, as well as Indiana where she studied and taught.
One is an Obama appointee, and part of the court’s liberal wing. One is a Trump appointee, and part of the conservative supermajority. Both, in conversation with a fellow judge, Thomas Griffith, rejected such labels and regretted that so many news stories refer to them in shorthand. Sotomayor denied being beholden to a president (saying a justice lasts far longer than any president anyway!) Barrett denied being beholden to a party.
They made a case that they listen to and engage with each other honestly. “We’re present with each other,” Sotomayor said. “We may disagree, but we are listening.”
The justices insisted they pay attention and sometimes even change their minds during oral arguments. Afterward, the nine justices meet alone, and each is allowed uninterrupted time to speak.
Barrett insisted that the justices are not supposed to wheel and deal the way that legislators might—because they cannot compromise on their views of the Constitution. But they might compromise on the scope of a ruling in order to get a majority. Does the judgment establish a precedent that applies to the whole country, or just one quirky case? Is it decided on narrow technical grounds, or sweeping ones?
The justices said they go out of their way to socialize, when possible, in the belief that knowing each other better would allow them to find consensus when possible. The late Sandra Day O’Connor insisted that other justices join her for lunch. More recent justices have screened movies for their colleagues.
Sotomayor insisted that the justices were people of good faith.
Barrett insisted that as a justice, you should “not do things just because you can.”
This was as close as Barrett came to acknowledging the Court’s most caustic critics. Adam Serwer of the Atlantic memorably asserted that the Court majority plays “Calvinball,” constantly shifting the rules to advance their political causes “because they can.”
The country that receives the Court’s decisions is deeply polarized. The Court’s own opinions, too, are quite passionate, and have grown longer and longer over time. But the justices pointed out one salutary thing. They read drafts of each other’s opinions, and often respond to the other side in the final opinions. In other words, they engage with each other’s arguments, which people in a divided society don’t always do.
Thanks for reading Differ We Must. If you haven’t bought the book of the same title, I hope you’ll consider it. Differ We Must tells Lincoln’s life story through sixteen face-to-face meetings with people he disagreed with. The story compelled me as I learned it, and also speaks to today.