When Will Democrats Take the Supreme Court Seriously?

First things first–Sonia Sotomayor and Elena Kagan both need to issue their resignations, contingent on the confirmation of a replacement named by Democrats, immediately. They’ve had nice runs, but there are 1,000 liberals who could do this job just fine. Both are getting older and if they really care about the future of the Court instead of their own egos, it’s the obvious call. But we know they won’t because they believe in themselves more than the party. There’s no question that a big part of Ruth Bader Ginsburg’s legacy is hanging on so long that abortion is now illegal in many states. That’s on her. Even the lamest, weakest Democrat would have ensured that Roe was law.

But more broadly, Democrats as voters and as politicians still don’t take the Court seriously enough. Among other things, I would argue for Biden to go full Andrew Jackson and simply spite the Court. But even if he wasn’t the ultimate institutionalist who would never do this, neither would most elected Democrats, who hold onto institutions as a lifeline far after those institutions have turned into sharks who love some delicious liberal blood.

Hassan Ali Kanu on the need for Democrats to step up their attacks on this unlawful Court:

Moreover, the term has also demonstrated how lacking our system is in terms of safeguards that can prevent or correct the Supreme Court when it oversteps its authority or engages in unjustified exercises of power. 

That points us squarely back to questions of Supreme Court reform. 

Although the White House seems to have largely dropped the idea, it seems clear that in the absence of reform the Court will continue to wield its power in palpably counter-majoritarian ways. and I don’t mean in the sense of protecting some disfavored minority group, but in the anti-democratic sense of thwarting good-faith, egalitarian policies preferred by the majority of Americans as well as Congress, as legal scholars like Nikolas Bowie of Harvard Law School have explained. 

President Joe Biden’s commission to explore Supreme Court reform produced a number of viable and sensible options. Congress could curtail or end judicial review, the power the Court aggregated to itself to exclusively interpret the Constitution. Under this standard, a Court majority can strike down a federal law even if “the president, over five hundred members of Congress, and four” of their own colleagues disagree, like in the Shelby County ruling which restricted Congress from protecting voters from discriminatory state laws. 

Even more modest proposals could further democratize the Court and judiciary, like prohibiting them from declining to apply laws passed by Congress unless they have at least a supermajority vote; or implementing sortition, random assignment and rotation into the process of appointing or assigning judges to the Supreme Court. 

At this point, when a six-member majority is literally declaring a former president who appointed three of them to be functionally above the law, against all prevailing opinion, scholarship, analysis and experience, the case for court reform couldn’t be clearer. 

There was a time in the past when I thought Roosevelt’s court packing plan was a political disaster. And it was by some measures. But I think what I understand now is that Roosevelt was willing to take that disaster because what was the point of having huge majorities to pass legislation if the Court was simply going to throw it all out because they longed for the United States of their youth in the Gilded Age. I don’t know if court packing is the best way to go here, but I do know we need a far more serious discussion throughout the left-of-fascist groups in America than we have had. The institutions only have value when they act as institutions that more or less settle somewhere in the broad swath of what most Americans want to see. If they don’t, then there is no reason to pay attention to them any longer.