The Supreme Court is out of the news, and reporters are focused on the presidential election, including whether Joe Biden will be the Democratic nominee, the despicable attempted assassination of Donald Trump, and the nomination of J. D. Vance for vice president. But no one should take the summer off from what the Court is doing. America is facing an assault on our democracy, carried out by the Court’s supermajority, led by Chief Justice John Roberts, and lower court judges. Democrats must respond to this attack, no matter their nominee, even if the Court is out of the headlines with its term concluded earlier this month. We’re glad to see reports that President Biden will soon propose term limits and a binding ethics code for Supreme Court justices.
It’s time. In February 2017, shortly after Trump took office, The Washington Post, which first reported the Biden-Harris looming reforms, adopted its slogan: “Democracy dies in darkness.” But democracy can die in broad daylight. Witness Federal District Court Judge Aileen Cannon casting aside long-standing precedents this week to rule that the appointment of Special Counsel Jack Smith is unconstitutional in the Mar-a-Lago documents case over which she’s presiding in Florida. Then there’s the Supreme Court’s stunning decision this month finding the president virtually immune from prosecution. The opinion, authored by Roberts, may scuttle the remaining federal and state cases against Trump, even if Trump loses the election. In New York State, where Trump was convicted on 34 felony counts related to his hush money and election interference scheme, sentencing has been delayed because of the Court’s ruling and may never be carried out.
It’s a familiar but still trenchant observation: There is nothing “conservative” about the Court’s supermajority. It is radical and untethered by conservative respect for precedent or the historic prerogatives of branches besides the executive.
While the Court issued questionable decisions when Chief Justices Warren Burger and William Rehnquist led it—Bush v. Gore—it never strayed so far from respecting constitutional consensus as it has under Roberts, despite his posture as an institutionalist only interested in “calling balls and strikes.”
Things changed in 2005 when President George W. Bush nominated, and the Senate confirmed Roberts and Samuel Alito to the Court. It created a 5-4 precedent-smashing majority that discovered a Second Amendment right to private ownership of guns (District of Columbia v. Heller, 2008), equated money and speech in extremis (Citizens United v. Federal Election Commission, 2010), and invalidated the pre-clearance requirements of the Voting Rights Act which Congress had almost unanimously extended. (Shelby County v. Holder, 2013) Thanks to Senate Republican Leader Mitch McConnell’s manipulation of the confirmation process to confirm Trump’s three nominees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—the 5-4 Court wielding a sledgehammer became the 6-3 radical court swinging a wrecking ball.
Although the Trumpified Court’s abortion and presidential immunity decisions received the most attention, equally radical are its evisceration of the ability of states and localities to regulate guns, elimination of affirmative action in university admissions, and reversal of the 40-year precedent requiring deference to administrative agencies when statutes are. So, too, were its decisions breaching the wall between church and state where even the flimsiest claim of religious liberty sent the justices running to grant a license to discriminate.
“The least dangerous branch,”—Alexander Hamilton’s famous description of the courts—has become the most dangerous, even without the sword or purse.
Trump and McConnell gave us this Supreme Court supermajority to change our country in ways that would be difficult to undo. Taking a victory lap when Barrett was confirmed days before the 2020 presidential election, McConnell boasted: “A lot of what we have done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time.”
He’s right. The Constitutional five-alarm fire lit by the Supreme Court supermajority illuminates the only way to respond to this attack on democracy. Whoever the Democrats nominate in Chicago must fiercely counterattack the Supreme Court, putting it front and center in their presidential campaign. They must detail the damage done and offer a clear response. The voters must know that if they elect a Democratic president and a Democratic Congress—very big “if”s, to be sure—the chief executive will fight to enlarge the Supreme Court from nine to 13 members, impose term limits on the justices, and pass a binding ethics code.
The case for these changes has been compelling for many years. Of the advanced democracies, America has the smallest number of jurists on its high court. We also have the only high court whose members are not constrained by age or term limits. Their replacement is a matter of the vicissitudes of death and resignation rather than any predictable timetable, leaving some one-term presidents like Trump with three nominations and others, like Jimmy Carter, with none.
Ignoring this antiquated and arbitrary system was possible when the Court commanded widespread respect. That is no longer the case, and “we the people” need not stand by while six justices remake our country, some while enriching themselves. When the Civil Rights Act neared passage in the summer of 1964, a very different Senate Republican leader, Everett Dirksen, who backed Lyndon Johnson’s historic legislation, quoted the French novelist Victor Hugo: “Nothing is more powerful than an idea whose time has come.” The next Democratic president needs to act on that truth.
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