Last year, after a string of Supreme Court decisions eviscerating abortion rights, weakening the EPA’s ability to regulate greenhouse gas emissions and shredding separation of church and state, I wrote about the need for drastic reform, including expansion of the Court to overcome the radical-right majority engineered by Senate Republicans and the Federalist Society. I argued that Democrats needed to get off their butts and act before things got worse.
Well, worse is here.
Following in the wake of new revelations of High Court corruption involving right-wing billionaires with deep ties to the Federalist Society and others seeking to erase much of the 20th century came more decisions aimed at erasing social progress. These latest rulings show that—as Elena Kagan, joined by justices Sotomayor and Jackson, explained in a stunning dissent in the student debt case—“In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.” There was no actual dispute to adjudicate, but the court acted anyway to advance an ideological agenda.
This is a rogue court exceeding its legitimate powers to conduct a full-on assault on civil rights, and that constitutes a national emergency.
I grump about this a lot on my social media accounts (mostly Mastodon—you’re not really still on Twitter, are you?) And from time to time, I throw in a gripe about how the Democrats could have reformed the court while they controlled both houses of Congress last year but refused to act. The responses to the latter are disturbing.
Any comment about Democrats’ failure to curb this corrupted Supreme Court gets met with a barrage of excuses from liberals justifying their party’s ineffectuality. Instead of “yes, we can,” the instinctive response from a good portion of the folks who should be helping to defend democracy seems to be “no, we can’t.” It’s a sort of learned helplessness that at this moment really could get us all killed.
It’s important to remember how genuinely radical the court’s actions this year have been. The Supreme Court’s website explains, “The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.” That is, there must be an actual conflict that needs to be adjudicated—it can’t go looking for controversies to weigh in on.
As Kagan’s dissent explains, in the student debt case, the six states that sued to end President Biden’s debt relief plan “oppose the Secretary’s loan cancellation plan on varied policy and legal grounds. But as everyone agrees, those objections are just general grievances; they do not show the particularized injury needed to bring suit.”
Missouri politicians tried to add a veneer of legitimacy by claiming Biden’s policy harmed the Missouri Higher Education Loan Authority—but MOHELA did not participate in or support the politicians’ suit. In Kagan’s words, “And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.”
The ruling that blew a hole in LGBTQ civil rights protections (and perhaps others), 303 Creative, was similarly phony. As Ian Milhiser explained for Vox, “Justice Neil Gorsuch released a 26-page opinion venting outrage about a legal dispute that does not exist, involving websites that do not exist.” Agree or disagree with the decisions of prior courts, this is not normal Supreme Court behavior.
Democrats had the power to prevent this, but didn’t. And the responses that come up when you point this out are amazingly consistent, drenched in learned helplessness. And when you counter one excuse, another instantly pops up—regularly enough that they’re worth addressing one by one:
Don’t criticize Democrats. The Republicans did this! Of course they did, and no one claims otherwise. But failure to prevent harm matters, too. Imagine this: I look out my window and see that my neighbor’s unattended barbecue is beginning to light his house on fire. I could take out my garden hose and put out the fire, phone him to let him know what’s happening, and bang on his door if I don’t have his number. Or I could go back to watching YouTube videos while his house burns to the ground. If I do that and his house is destroyed—sure, it was his fault for not keeping an eye on his barbecue fire, but would you really call me blameless?
Democrats couldn’t act because you need 60 votes in the Senate. No, you don’t. The filibuster rule is not in the Constitution, nor was it handed to Moses by God on stone tablets. It can be changed with a simple majority—which the Democrats had, with Vice President Kamala Harris as tiebreaker. And that leads us to the next excuse:
The Democrats couldn’t get 51 votes because of Manchin and Sinema. No doubt, these two nominal Democrats (as Sinema still was back then) represented an obstacle to both filibuster reform and meaningful Supreme Court reform. At this point, a small history lesson is in order.
Is anyone out there old enough to remember Lyndon Johnson, Senate majority leader during most of the Eisenhower administration and president from 1963 to 1969? LBJ never once let “we’re two votes short” stop him from getting things done that he thought were important. He’d twist whatever arms or other appendages he needed to twist to get the votes. And he generally got them. It’s no accident that LBJ biographer Robert Caro titled his volume covering Johnson’s Senate years “Master of the Senate.” Has anyone, anywhere ever called Chuck Schumer “Master of the Senate?” But even this brings up another excuse:
It’s not the same – LBJ had a super-majority! Not quite. Most of the time he led the Senate, that body was as closely divided as it’s been the last few years. As president he did have large majorities, but those majorities only existed because of conservative, often overtly racist, southern Democrats like Harry Byrd of Virginia. Virtually all of these senators, from what we now call “red states,” were every bit as right-wing as current Republicans, and they didn’t like a lot of what Johnson wanted to do. Johnson didn’t need all of their votes all of the time, but they got the votes he really needed, with whatever combination of favors and threats that required. (Understand that I’m not trying to paint LBJ as a hero—he got plenty of things disastrously wrong, like a certain Southeast Asian war—but he knew how to wield power.)
When the apologists run out of specific excuses, they fall back on:
Don’t criticize Democrats, they’re all we’ve got! In a system designed to favor two major parties, it’s true that at least for now we’re stuck with the Democrats as the only viable alternative to right-wing authoritarianism. But for that alternative to save us, it has to be effective, and right now the record is decidedly mixed. Of course, I’ll grit my teeth and vote for Joe Biden against Trump or DeSantis, but we must push him and congressional Democrats to do better.
I’m not claiming that changing the filibuster rule and reforming the Supreme Court through court expansion and/or term limits would have been easy. It would have been difficult as hell. And for now, with the Republicans running the House of Representatives, it’s probably impossible in the short term.
But when they had a chance, the Democratic Party leadership didn’t even try. And even after last month’s outrageous rulings on affirmative action (basically standing the 14th Amendment on its head), student debt and LGBTQ civil rights, Senate Majority Leader Charles Schumer of New York couldn’t bring himself to endorse court expansion or term limits for justices even as he was calling SCOTUS “This MAGA-captured Supreme Court.” And President Biden said that trying to expand the court would be a “mistake,” arguing that such a move would “politicize” the high court.
Earth to Joe and Chuck: That train left the station years ago, arguably decades ago. The only question now is: What are you willing to do about it, and will we have any civil rights left when you do? “No, we can’t” won’t save democracy.