Gilbert Stuart, George Washington, c. 1795. Metropolitan Museum of Art (public domain).
A Modest Proposal for Improving American Democracy
The far-right ideologues celebrate
With the Supreme Court’s recent decisions disempowering federal regulatory agencies (the “Chevron deference”) and granting the President criminal immunity for “official acts” in office, American democracy – long infirm – is nearly moribund. The far-right ideologues of the Claremont Institute, Foundation for Government Accountability, and Heritage Foundation (with its Project 2025 initiative) are delirious. In deference to their teetotaling, Van Gogh ear’d enabler at Mar-a-Lago, they may be popping Coke tabs instead of champagne corks — but they’re nevertheless drunk with success.
The Supreme Court is dismantling the “administrative state,” vesting autocratic power in a Republican president-in-waiting, and crowning itself veritable philosopher-kings. Its current 6-3 conservative majority will likely increase to 7-2 after another Republican presidency, and 9-0 after that. By then however, the deed will have been done: The U.S. will be a Christian Nationalist, corporatist state, the envy of fascists and would-be fascists from Russia to Israel, and from Hungary to India. Women’s rights, queer rights and worker rights will be curtailed, immigrants will be concentrated in camps before deportation, education will become patriotic (Christian) education, and the green transition will be strangled in its cradle. Anybody who likes gay sex, electric cars, inexpensive (Chinese) appliances, drag shows, affordable gardening help, the minimum wage, Margaret Atwood, or porn, will be out of luck.
Turnabout is fair play
But all is not yet lost. The Supreme Court’s decision in Trump v. United Sates – the worst ruling since Dred Scott v. Sanford (1857) denying Black citizenship – has a silver lining. It allows 81-year-old President Joseph Biden Jr., at a single stroke, to correct past SCOTUS abuses, set the nation on a path to democratic renewal, and even restore his own floundering reputation. Here’s how:
Immediately dismiss from the Court, Clarence Thomas and Samuel Alito on the grounds of corruption. Both have accepted gifts from plaintiffs with cases before the court, and refused recusal for cases in which they had a vested interest. They deserve to be fired.
Drawing upon his newly enhanced powers to act “officially” without fear of prosecution, Biden should in addition, quickly nominate – and the Democratic-led Senate confirm — a pair of replacement justices who publicly attest they will restore abortions right (Roe v. Wade) as the law of the land, reverse Trump v. United States, and review Chevron. Fast tracked cases will then restore the legal status quo ante. There is no risk the Court will refuse to hear the cases. The vote of only four justices is required to hear a case. If the Court’s Republican justices (they might as well have elephants emblazoned on their robes) refuse to hear the cases, fine: then the final judgement will be unanimous.
Biden’s authority to dismiss the two worst judges in modern history would not be a power play. Its basis is the Constitution itself:
Article 2, section 2: “[The President] shall take Care that the Laws be faithfully executed”.
Article 2, section six, the presidential oath of office: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Article 6, section 3: “All executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”
Biden’s “official act”, using the Court’s new language, would be entirely in keeping with Chief Justice Robert’s justification of Presidential immunity on the grounds that it makes possible a “bold, independent, and energetic” executive. As a side political benefit, it will quash any notion that Biden is a weak, passive, or excessively cautious man. In last month’s now infamous presidential debate, Trump said of Biden, emphatically: “He doesn’t fire people. He never fired people.” With his unilateral action, Biden will both prove Trump wrong and restore to the court a modicum of judicial restraint. Its members will understand they are – as the Constitution affirms – subject to checks by the Executive and Legislative branches of government.
Impact on Trump prosecutions
In overturning Trump v. United States, the court will remove all impediments in the case of United States v. Trump, the election subversion case brought by special prosecutor Jack Smith, and heard by Judge Tanya Chulkan in Washington, D.C. A speedy resolution of that trial – before the November election – will allow the electorate to know if Donald J. Trump, already a convicted felon, is also an insurrectionist. If convicted, he will be ineligible to hold office under the 14th amendment to the Constitution:
Amendment 14, section three: “No person shall… hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
While the Republican-led Supreme Court in Trump v. Anderson previously rejected the claim of Colorado voters that Trump be barred from running for office, a conviction in U.S. v. Trump will surely require his disqualification. Though the Alito/Thomas Court determined (in a fanciful ruling) that states have no right to bar candidates for federal office, Judge Chulken is a federal judge, empowered to enforce provisions of the U.S. Constitution. She would almost certainly prevent Trump from running for the office of President and impose a significant custodial sentence. The other Trump criminal prosecutions – the documents case in Washington, the election interference case in Georgia, and the sentencing for Trump’s conviction in New York – will also be able to proceed unhindered by an unhinged Supreme Court judgement.
Another likely impact of firing and replacing Justices Alito and Thomas
The other case decided at the very end of SCOTUS’s wrecking-ball term, was Loper Bright Enterprises v. Raimondo which overturned a 40-year-old precedent called the “Chevron deference.” That previous ruling directed courts to defer to the expertise of government agencies when interpreting ambiguous language in federal law. The new ruling strips agencies of that prerogative and returns it to mostly un-elected judges. The consequence will be that courts across the country accede to the demands of polluting industry and gut environmental regulation, undermining the existential struggle against global warming. By firing Alito and Thomas, the Chevron deference will be restored, and agencies freed to regulate polluting industry.
A selfless presidential determination
In addition to these bold actions, President Biden should take one more: Announce he is withdrawing his candidacy for re-election – just as the first president, George Washington did in 1796 — and retire on Inauguration Day, January 20, 2025. Far from seeking power for himself, his bold actions were intended only to restore the fraying fabric of democracy. He could, if he chose, urge his delegates to cast their votes for Vice President Kamala Harris, or simply release them to vote for one among the half-dozen or so candidates who are likely to step up. Either way, Biden would earn the admiration of a grateful nation and help assure the election of a man or woman – not Trump, the winged fascist – who respects American electoral democracy.
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