With the Supreme Court’s recent one-two-three punches striking down affirmative action, debt relief for college students, and legalizing religious-based discrimination against LGBTQ Americans, only the most Pollyannaish of observers would deny that we’re deep into a rollback of fundamental rights and democratic governance at the hands of a reactionary court. The overwhelming question for an American majority victimized and betrayed by these decisions is what to do about it.
Two broad choices lie before us: to concede the authority of the Court’s decisions and accommodate ourselves to their impact as reflecting an inescapable new order of American life, or to determine a way to reverse and resist them as effectively and expeditiously as possible.
Given the fundamentally anti-democratic spirit of this reactionary court’s decade and more of harmful decisions, finding a way forward should be the obvious path.
The question of the Court’s relative legitimacy will be central to coming battles to reverse a string of decisions that have savaged individual rights (abortion, LGBTQ equality) and the government’s ability to engage in majority rule (rollbacks of environmental laws, the reversal of student debt relief, the evisceration of labor and gun control measures). For those looking to restore balance to our system of checks and balances, the argument that the court has exceeded its proper role and expanded into illegitimate exercises of power will need to be made convincingly to the American public. Happily for supporters of reform, powerful arguments abound.
Let’s start with a point that’s fundamental to rallying public support for Supreme Court reform. Rebecca Solnit has written that the court “can dismantle the legislation but they cannot touch the beliefs and values. We still believe in these rights.” Solnit’s point is foundational to the work of growing a mass movement to push for court reform: rights that the Supreme Court has purported to negate, such as equality for sexual minorities or a woman’s right to control her own body — are still our rights, even as the court has now empowered government to act to take them away. Such rights have been won by mass, democratic actions and hard-fought legislative battles across the decades, and the court has acted in an illegitimate fashion by trying to take them away. Similarly, the court’s restriction of the government’s ability to act on behalf of the majority on a variety of fronts, from environmental protection to the preservation of labor rights, represents an anti-democratic pushback that defies the halting but steady progress of the United States towards greater democracy.
Then there’s the matter of the Supreme Court substituting itself for the role of Congress — no longer just adjudicating disputes between other branches of government, good-faith disputes about legal interpretation, and questions of constitutionality, but creating new policies and extra-constitutional concepts wholesale. As Mehdi Hasan puts it, the Court “takes issues decided by the people’s representatives and then re-decides them in a manner that pleases the conservative supermajority on the bench. So an elected, and Democratic-controlled, Congress can write and pass a progressive law, but an unelected and very conservative Supreme Court can just rewrite it.” Hassan points to the vast array of areas in which the Court has acted in such a manner, spanning “student loan relief, climate change, voting rights, labor laws and gun control.” This substitution of the Court’s positions for those of Congress has been abetted by the spurious “major questions doctrine,” which requires “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” But as Vox’s Ian Milhiser points out, this doctrine has simply been conjured into existence by the reactionary majority.
The court’s use of made-up rules to arrive at its preferred ideological conclusions is another powerful argument in favor of constraining its overbearing exercise of power, and is part of a larger issue still — the right-wing justices’ increasing preference for deciding cases not based on constitutional principles, but simply in alignment with the partisan needs of the Republican Party. Crooked Media’s Brian Beutler writes that, “Its fixations fluctuate in near perfect conformity with the fleeting and manufactured resentments of the organized right, which makes anticipating in advance whose ox will be gored, and on what time table, a challenge even for scholars.” I think it’s safe to say that most people’s sense of the Supreme Court’s proper role does not include it acting as an adjunct of Republican Party political priorities — yet that’s the role it’s increasingly played, most recently by deciding in favor of discrimination in a case that appears not to have even been fit for a Supreme Court hearing in the first place, but that aligns neatly with the GOP’s current push to give religious fundamentalists more rights than everyone else.
In the same piece, Beutler set out a comprehensive case for why a full confrontation with the Court by the president and Congress is the proper way to resolve this ongoing crisis of a rogue judiciary, arguing that, “expanding the court, or at least credibly threatening to, is the only surefire way to sever it from the political and financial influences that currently control it.” I think this is correct, but in terms of making the public case for such reform, Beutler zeroes in on a key observation — that we need this because of a crisis that the Court itself has created, so that President Biden and the Democratic Party more broadly have “no choice but to embrace” actions to restrain the Court’s power. This is an argument that should resonate powerfully with the American public, and create a feedback loop in which open and frank discussions of the court’s out-of-control nature will build public support for meaningful reforms.
This is a point I can’t stress enough — any effort to reform the Supreme Court necessarily must do so not just under the framework of restoring abstract checks and balances to American government (no matter how important that goal is), but specifically under the banner of democracy and the Court’s subversion of Americans’ political choices and rights.
Any reform effort must, on grounds both practical and moral, involve an open acknowledgment of the way six Supreme Court justices have set themselves into a sort of feudal opposition to the values, beliefs, lives, and livelihoods of the vast majority of Americans. The Supreme Court, with its lifetime appointments and legacy of presidents no longer on the political scene, has sometimes been described as the dead hand of the past emerging into the present; what we need now is for the very much alive population of current American voters to grasp the travesty of the current Supreme Court, and slap that skeletal hand back.
Then there is the stupefying behavior by certain justices that calls into question both their baseline ethics and their judicial independence in arriving at particular rulings — not to mention the ethics of Chief Justice John Roberts, who to date has seemed mostly indifferent to staggering breaches of propriety. Most recently, reports have shown that billionaire sugar daddies with business before the court have provided both justices Samuel Alito and Clarence Thomas with thousands of dollars in benefits. At a minimum, the willingness to countenance the appearance of impropriety must be considered shocking: Supreme Court justices, as the highest embodiment of the judicial branch, should be expected to adhere to the highest ethical standards — they have an unavoidable role to play in setting an example to other judges and government officials, a role that the public should reasonably count on them to embrace with good-faith efforts and even pride.
Instead, Alito and Thomas have demonstrated contempt for this basic responsibility to be role models; worse, they have introduced reasonable doubts about the corruption of their votes on matters before the Court involving their big-spending benefactors. While it is extremely unlikely either would ever be impeached and removed by the Senate, the justices’ open disdain for an American public that rightly perceives impropriety in Lear jet ride-alongs and millionaire-funded mortgage payments can be wielded as a tool in the battle for overarching Court reform. Advocates for a reformed court should argue that ethics rules for justices going forward cannot heal the appearance of, or actual impropriety, in the past; even the strictest new rules would not make right the judicial corruptions already inflicted on American law and society. And so the glaring need for ethics reforms to govern the Supreme Court also becomes an argument for increasing the number of seats on the court, so that honest judges may be impaneled to balance out the dubious presence of compromised ones.
As I said above, we need to fundamentally view the battle to restrain the Court as a battle for democracy and for the individual rights of the American citizens who are the living, breathing substance of our democracy. It is not without significance that some conservative justices appear to assume that most American are rubes if not outright morons — just look at Alito’s pathetic defense that there was nothing wrong with him accepting a flight on a millionaire’s jet to an all-expenses-paid Alaskan fishing trip on the grounds that the seat would otherwise have been empty (I have read his comment a dozen times, and believe me, it makes less sense every time. To extend his (il)logic, there would be nothing wrong with a Supreme Court justice accepting money from a millionaire if the money otherwise would have just been sitting in the millionaire’s bank account). It is completely within bounds to remind the American people that justices’ indifference to the unethical spectacle of hoovering up financial benefits is of a piece with the justices’ indifference to hoovering up Americans’ hard-won rights and democracy: both positions are grounded in contempt for ordinary citizens and an unacceptable abuse of their power.
One note of caution — we should be careful not to allow discussions of ethics reforms on matters such as accepting financial benefits from bazillionaires to be confused with the broader reforms required to reign in the Court’s out-of-control power exercised in the service of reactionary and partisan ends. From this perspective, ethics reforms might even run the risk of restoring a broader legitimacy to the Court it certainly doesn’t deserve; there’s a tension between these two goals that I haven’t seen acknowledged nearly enough, if at all. Surely the venality of justices like Thomas and Alito needs to be addressed — not in order to restore a legitimacy to an otherwise unreformed Court, but as one part of a much broader effort to put the Court back into its proper place and ensure it is doing the people’s business, not the business of sugar daddies and ideological whips.
In his essay I quoted above, Ian Milhiser argues that reversing this corrupted court’s bad decisions will require Americans to stay upset and angry about those rulings over the long term, since reversing the damage will realistically take years. This cultivation of a “grudge,” he points out, has after all been central to how right-wing interests have gotten sympathetic justices onto the court and helped yield favorable rulings. As I’ve lamented before, though, the Democratic Party generally resists riling up voters, with a technocratic, low-drama approach preferred by many elected officials. However, the fundamentally pro-democracy project of reforming the Supreme Court needs to acknowledge and channel people’s anger at Supreme Court betrayal, and to recognize that this anger is ultimately an outgrowth of powerful beliefs and emotions — like a love of justice, fair play, and mutual respect. To build and sustain the momentum for change — whether adding seats to the court, imposing term limits, restricting the court’s jurisdiction, passing laws to overturn bad decisions, or some combination of the above — we will all need to hold fast to our sense of injustice and desire for fairness. Remembering that millions of us are upset and fired up for identical reasons is an important way that democracy will sustain itself and find its way to reform the self-serving legalisms and reactionary bent of this corrupt Supreme Court.