9 min read

Maybe we’re not as divided as we think

Two Supreme Court justices and two governors offer their guide for cross-party conciliation.
Maybe we’re not as divided as we think
Justices Amy Coney Barrett and Sonia Sotomayor at the NGA meeting on Friday. (Photo by Gabe Fleisher)

Good morning! It’s Monday, February 26, 2024. Election Day is 253 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

When most people think of bipartisan comity, the U.S. Supreme Court probably isn’t the first body that comes to mind.

Lately, the court is referred to as often as not by its ideological breakdown (“the 6-3 court”); its approval rating has slipped from 66% in 2020 to 40% today. The court’s confirmations, and decisionmaking, have grown more politicized. Like at many institutions, relationships on the bench seem to have worsened since Covid, between disputes about masks and leak investigations and scrutiny over ethics.

Reports of intra-court backbiting, which have titillated the Washington press crops at least since the 1979 publication of The Brethren, are on the rise. And that’s before the court wades into a thicket of highly charged controversies this year, from a pair of cases involving Donald Trump and the ongoing election to a case on medication abortion, following up on the 2022 Dobbs decision that sent trust in the court spiraling.

But, in a rare joint appearance on Friday, Justices Sonia Sotomayor and Amy Coney Barrett sought to dispel those perceptions. “We don’t have red robes and blue robes,” Barrett pointed out.

Sotomayor and Barrett — Obama and Trump appointees, respectively — were on stage together for the annual meeting of the National Governors Association, which took place at a Washington hotel this weekend. Each NGA chair adopts a different policy initiative that they spend their year at the helm highlighting: past choices have included infrastructure, computer science education, and cybersecurity. This year’s chair, Gov. Spencer Cox (R-UT), chose a less material focus: the nation’s very soul.

Cox’s initiative, “Disagree Better,” is aimed at lowering the temperature of political polarization in the country. The Supreme Court justices were on hand as examples of individuals who, whatever you may think of them, are good at disagreeing amicably. While the flashy cases get the attention (and should), almost half of the court’s docket was decided unanimously last term. The court often features shifting coalitions, with justices dissenting from each other one day and in accord the next. As the graph below shows, no two justices — from the most liberal to the most conservative — agreed with each other less than 60% of the time last term. (For comparison of how frequent such cross-pollination is at the Capitol, Alexandria Ocasio-Cortez and Matt Gaetz have voted together 17% of the time this Congress.)

Graph by Empirical SCOTUS

During the NGA conference, 42 of the country’s 50 governors, as well as their staffers and a handful of reporters, sat and took notes as Sotomayor and Barrett told us how the court manages to have harsh philosophical disputes while remaining (they insisted) friendly and collegial.

“When we disagree, our pens are sharp,” Sotomayor said, “but on a personal level, we never translate that into our relationships with one another.”

As far as I know, no House or Senate members were in attendance, but parts of the justices’ talk seemed aimed at their across-the-street neighbors, subtly pointing out the ways the Supreme Court operates differently than Congress, an institution few people would trot out as an exemplar of “disagreeing better.”

Perhaps their biggest recommendation was to maintain a high level of face-to-face interactions, which (as Barrett noted) have declined at many organizations since Covid, although interpersonal contact has been slipping at Congress for several years now.

When the Supreme Court is in session, the justices said, all nine of them sit together for oral arguments (usually hearing six cases a week), meet for their Friday conference, and have lunch together four times a week. “That’s a lot of time together,” Barrett said. “For collegiality, you have to spend time together because you have to know one another.”

“It’s a lot easier to demonize someone or to resent someone when you’re not ineracting with them in flesh and blood on a regular basis,” Barrett continued. “Justice Sotomayor asks about how my children are doing and she knows. When Justice Sotomayor’s mother was dying, we all knew. So we share. We share light things, like what shows we’re watching on TV and more serious things that are happening in our families.”

Notably, the duo also felt strongly that the court’s lack of transparency — which is frequently a source of criticism — is an essential ingredient in its capacity for cooperation. At oral arguments and in conference, Sotomayor said, “We’re present with each other. We’re listening to what each other are saying.”

“I think what’s happening, regrettably, in too many legislative processes is because there’s cameras in your chamber, many legislators and others are not sitting in the room any more,” she added, recalling from her confirmation hearings that when one senator was talking, their colleagues out of frame were usually elsewhere.

“If you’re not listening, you’re not going to be able to think about what other people are saying,” Sotomayor said. And, of course, if any moment is a potential viral clip, a partisan performance will always be more tempting than a reasoned discussion.

Even if they disagree on legal principles, both Sotomayor and Barrett repeatedly praised their court colleagues as, at their core, people of good faith. “That’s a problem that I see in the public exchanges that I see on TV,” Sotomayor said. “There’s too much vilifying of people as human beings and not enough acceptance that we are fundamentally good people. You don’t get involved in public service...unless you have some certain core values about love of family, love of friends, love of community.”

A few days earlier, at a different D.C. hotel, I attended another public exchange much more in this mold of good faith and collegiality. There, again, was Utah Gov. Cox, promoting “Disagree Better”; this time, his on-stage partner was Gov. Wes Moore (D-MD). The audience for this bipartisan love-fest were members of the Economic Club of Washington, D.C., as well as, again, just a handful of reporters (this time only four, myself included).

Like Sotomayor and Barrett, Cox and Moore stayed away from controversial terrain — at both events, there was little to no talk of Trump, or January 6th, or presidential aging. (The closest the justices got was when Sotomayor dismissed the idea of justices being beholden to a specific president as “a little crazy.” Barrett laughed in agreement.) Instead, they stuck to safer ground, like Cox’s mantra (which Moore echoed) that governors are the “last adults in the room.”

“Potholes aren’t partisan,” Cox made sure to note.

Govs. Spencer Cox and Wes Moore. (Photo by the Economic Club of Washington, D.C.)

Even on policy, when they were supposed to be modeling better disagreement, they mostly just agreed: Cox pivoted from abortion to talking about encouraging sex education and aid for single mothers; Moore referred to passing gun laws that make people safe without violating the Second Amendment.

It was, to be frank, refreshing. As they nodded and laughed with each other, I couldn’t help but think about an alternate reality where these two governors — both charismatic, under 50, and calm but well-spoken advocates for what they believe in — were sharing the stage at a presidential debate instead of in an anonymous hotel ballroom. In my imagined Cox-Moore contest, between these two young men who clearly did not believe Armageddon would accompany the other’s victory, I could already feel the national anxiety level dropping a few notches.

Apparently, I wasn’t the only one thinking about it. “Someday, somebody like Wes Moore is going to run for president and I’m probably going to campaign for the other side,” Cox said, “but our country will be much better off if and when that happens.”

For now, though, “we’ve got the incentive structures all wrong in America,” Cox said, “and we’re elevating all the loudest voices in the room”: performers, not problem-solvers. To get to a general election debate, past their party primaries, Cox and Moore would probably have to cut the fist bumps and up the vitriol. (In a nod to this reality, Cox jokingly said at the outset of the event that, as a Republican governor up for re-election this cycle, calling Moore his friend was a “true testament of courage.”)

Cox speaks eloquently about the sources of our current polarization — noting that Americans are “wired for connection and we don’t have it,” and, in our loneliness, turning to politics for emotional fellowship — but, when I saw him across Washington last week, his solutions were less explicit.

Often, when people speak about the incentive structures Cox refers to, they have a certain fix in mind, a change to the mechanics of American politics that might promote bipartisanship: switching to ranked-choice voting, for example, or introducing term limits. But when I asked Cox, after the Supreme Court event, if any systemic changes were necessary to encourage “disagreeing better,” he said there “probably” were — but offered no specifics.

Instead, Cox’s focus seems to be more spiritual than structural. Rather than change American systems to reduce divisions, he would rather change American minds to convince them that the divisions are smaller than imagined. In that way, Cox’s solution really does boil down to events like the two I attended last week: public showcases that, actually, we’re not so far apart as people think.

Polarization, Cox said at the NGA meeting, is “all based on a lie — or, at least, a misperception. We’re actually not as divided as the conflict entrepreneurs would lead us to believe.”

A recent Carnegie Endowment paper makes a similar point: Americans are not very ideologically polarized, as vast majorities of voters agree on many issues (from guns to border security to abortion), even if our politicians don’t. However, we are emotionally polarized, which scholars refer to as “affective polarization.” Partially due to “conflict entrepreneurs,” as Cox called them, we have been conditioned to believe we are far apart on the issues — and therefore, have developed strong dislikes towards voters in other party, even when, in reality, there is much we agree on.

It is affective polarization that Cox is trying to tackle, one bipartisan event at a time. His solution may sound as fanciful as Barrett’s advice that Congress merely all have lunch together, but he has some data to support it. Last year, Stanford University tried 25 interventions on 31,000 U.S. partisans, to test which ones did the most to reduce support for partisan animosity, partisan violence, and anti-democratic attitudes.

One of the most effective interventions was showing participants an ad Cox cut with his Democratic opponent during the 2020 election, in which they both pledged to support the eventual outcome:

Showing participants that these two candidates came together to say they would honor the election results — and that life would go on if they won or lost — made voters much more willing to believe that the other party was willing to engage in democratic behaviors. Of the 25 interventions tested, it was the second-most effective for reducing support for political violence.

Perhaps that’s why, at the NGA event, Cox used a significant portion of his remarks noting that the association had a recording booth set up — and encouraging governors to grab a bipartisan buddy and produce a similar video. (Moore recently made one with a Republican mayor, which Cox showed to loud applause.)

Of course, Cox and Moore — and Sotomayor and Barrett — have their work cut out for them in reaching Americans. I was struck by a quote that pollster Sarah Longwell reported from a recent focus group, in which a Republican voter told her she was supporting Trump over Nikki Haley because, “If you want to be president, you’ve got to be hated by half the country.”

Contrast that with Moore’s remark at the Economic Club last week: “You can’t claim to love the country if you hate half the people in it.” (“Amen,” Cox responded.)

Perhaps Moore’s sentiment is the more popular one, and our current polarization is something of a blip — more like a national fever. But he and Cox are up against some daunting data: even if they’re right that we aren’t terribly polarized by ideology, our affective polarization seems fairly entrenched.

Graph by the Carnegie Endowment

We might be dealing with something more chronic than a fever — and it’s only poised to get worse as November creeps closer. Cox better get recording on those videos.

These are the exact themes I’m going to be exploring frequently in this newsletter in the coming months: partisanship, polarization, whether we can escape them, and how we might try.

If you have any ideas on topics to cover in those categories, I’m all ears: you can reach me at gabe@wakeuptopolitics.com, or just by replying to this email.

Finally, this work comes to you for free — but it costs money to produce. If you want to support bringing these ideas to the conversation, I hope you’ll consider donating to Wake Up To Politics on a one-time or recurring basis. Here at WUTP, donations are never required — and if you can’t, that’s more than OK! — but they are always appreciated.

See you tomorrow! — Gabe