Tuesday, July 12, 2022

The Coming Tyranny of Six Supreme Court Justices

Our democracy is hanging on by a thread and nothing captures that better than the fact that the party that lost the popular vote in seven of the last eight presidential elections now has a 6-3 majority on the Supreme Court.

More than anyone else, the two people most responsible for that reality are Mitch McConnell and Leonard Leo. I've written about the latter in the past, including how he used dark money to capture the majority on the Court. Going all the way back to the nomination of Clarence Thomas, Leo (former head of the Federalist Society) has selected and shepherded every one of the six extremist judges through the process of confirmation. During that time, the only Republican nominee Leo didn't select and support was Harriet Miers, and perhaps you remember what happened to her. Instead we got Alito.

But Leo couldn't have done it alone. During his last tenure as Senate Majority Leader, Mitch McConnell adopted what he called his "judiciary project." It wasn't just his outlandish strategy of blocking an Obama nominee - handing an open seat to Trump. What we've seen from McConnell is a complete neutering of Congress. When Republicans were in the majority, their leader wasn't interested in passing any legislation other than tax cuts for his wealthy donors. And when in the minority, he used the filibuster to stop Democrats from accomplishing anything. 

Ultimately, minorities and majorities are meaningless to McConnell if he can stack the courts with extremist judges and use them to bypass both congress and the president. That is precisely why he had that little smirk on his face when responding to a question in 2019 about whether he would demonstrate his hypocrisy by confirming a Trump nominee in 2020.

After that smirk, McConnell laid out his plan for undermining democracy. He explained that, when it comes to congress and the president, nothing is permanent. But "what can't be undone is a lifetime appointment of a young man or woman" to the court. That is why he has repeatedly referred to the blocking of Obama's nominee as his "most consequential political accomplishment."

With congress effectively neutered via the Senate filibuster, the remaining task has been to effectively neuter the executive branch as well. Back in 2013, the court ruled that the Justice Department could no longer enforce the Voting Rights Act by demanding "pre-clearance" for changes to voting laws in former Confederate states. Then it took another step in that direction with their more recent ruling in West Virginia vs EPA. The conservative majority said that the EPA lacked the authority to enforce the Obama administration’s 2015 Clean Power Plan. I expect we'll see more of those kinds of rulings from this court in the coming years.

With the legislative and executive branches of government basically neutered, that will leave the extremist majority on the Supreme Court as the one branch that maintains power - with lifetime appointments. As such, they will decide what laws states can/can't pass (ie, abortion, guns, elections) or simply decide issues for themselves.

It is important for all of us to recognize that these actions are designed to undermine the separation of powers that was built into our Constitution. The threat is very real and underway as we speak.

"With fear for our democracy, I dissent."

My title is how Justice Sonia Sotomayor concluded her dissenting opinion to the Supreme Court case granting presidents criminal immunity for...