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.


  1. The real effect of the Roe v Wade decision, supported by the other flurry of decisions released last week, will be that these issues (esp RvW) separate the states far more than partisan politics already has. We will end up with a set of states where abortion is illegal and a set where it is legal (unless legislation is passed by conservative majorities). If gay marriage is thrown out, the same will happen. We will end up as 2 countries, most certainly ungovernable as a single unit. The Supreme Court this session changed our country and what is possible for it dramatically. I don't think any single entity should be able to do that, esp one out of sinc with the populace.

  2. Glad you're still posting, and valuable to focus on McConnell, although one could well spread the blame still further, to the lockstep GOP votes (e.g., Collins in Maine) and to the executive that appointed such awful justices, not to mention the voters who enabled him. Right now, we're reading a lot about how the courts are the least democratic branch, but I'm not so sure, however many precedents like Plessy v. Ferguson one can mention. All branches have Constitutional flaws (electoral college for the president, deference to rural states in the Senate as well). But even those may pall behind the enablers, such as gerrymandering that empowers the GOP in the House as well (and it may well soon be the House with GOP control). And Parliamentary systems did not preclude Johnson from assuming office or fascism in Hungary.

    I'm all in favor of reforms to the Court, particularly term limits. Limiting its powers seems less realistic to me, as surely there will be a final court with say over what the law means. Allowing Congress or the president to declare that would hardly be helpful. It'd be the same unchecked power of fascist states. I'm not even convinced by expanding the court. It is too easy for the next Congress to undo; it has the obvious appearance of partisanship, whereas term limits are nominally nonpartisan; and a larger court isn't necessarily a way to resolve cases. It's too close to a legislature (and don't forget that lower courts have rather fewer than nine members). Imagine a decision with 14 separate concurring and dissenting opinions and the chaos of what to do in the states and the federal government that would leave. But it's all academic anyway. If we can't get a simple law past McConnell, how do dreamers think we can get a reform of government itself, one that might involve an amendment?

    I see it as reactive and born of despair, but that alienation can easily lead to magical thinking. Maureen Dowd (hardly a progressive) quotes a British journalist who writes off Biden's plea to vote as itself magical thinking, when he should be acting. But that has it backward. Even Josh Marshall has asked for legislation to reverse Dodds, knowing it would never pass or would be struck down. But who's that aimed it? Is it independent voters, who would finally be swayed that the GPO is anti-abortion rights? Finally?? Or is it Democrats who would have their egos reinforced by losing, that old leftist hope that losing, not winning, leads to courage and ultimately power? In this case, they'd just blame Biden for the failure of legislation or its court reversal!

    I have to say again, voting is the only remedy. The enemy is the GOP, and there's no solution but to remove them from power.


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