With the overturning of Roe. v. Wade, the 6-3 conservative majority Supreme Court has fully declared war on the freer and more egalitarian society forged in the social advances of the past century. Alongside other decisions, the Court has demonstrated its loyalty to partisan Republican ends over settled precedent, reason, and democratic governance as the bedrocks of the American project.
Confronted with such a Supreme Court, the Democratic Party has an urgent need to prioritize reform of an institution so corrupted and opposed to the American majority’s views of a free and healthy society. And key to the Democratic establishment making this necessary about-face will be encouragement of a vigorous conversation within the Democratic base and among the American people more generally about the necessity of Court reform.
This conversation will have to reckon with twin obstacles: widely-held beliefs that nothing should or can be done. A couple recent pieces by Josh Marshall at Talking Points Memo and Jamelle Bouie at The New York Times suggest possible paths forward for what such a conversation might look like, and how to address common misperceptions that we are stuck with this Court and that attempts at reform would somehow destroy the constitutional order. Both writers get back to basics, rooting their arguments in the logic of the U.S. constitution and the fundamental role of the American people in determining their own form of government.
Marshall makes the essential observation that the current Supreme Court has sabotaged its own legitimacy at this point, noting that, “The legitimacy and power of the Court rests on the public’s belief that it is making a good-faith effort to wrestle with the numerous questions arising from the Constitution, governmental actions and the law-making process. But what we have seen in this last decade [. . .] is something specific and different. It is a Court operating expansively, routinely overruling the actions of the other branches not according to any coherent set of principles but to advance the ideological and, increasingly, the nakedly partisan goals of the Republican Party.”
This basic concept — that the Supreme Court majority possesses loyalty not to the law but to the GOP — cannot be repeated often enough. It has the virtue of being true, and is essential to persuading Democrats and other Americans to take seriously the importance of restoring balance and legitimacy to the Supreme Court, against the corrupt behavior of its current majority. In this sense, Court reformers are the true conservatives, loyal to the constitution and the rule of law, against those who seek to turn the law into a puppet of raw power.
Marshall also makes the key point that, as with the executive and legislative branches of government, the Supreme Court is not meant to be some sort of supreme power outside the bounds of checks and balances. Our system of government only makes sense if the Supreme Court can be constrained by its rival branches. But Marshall rightly points to the American people themselves as the ultimate arbiters of our constitutional order, so that “corruptions of the Court are to be addressed ultimately by the political process, by the people, who own it.” I think it’s also accurate to say that if the American people think the Supreme Court is acting corruptly, then it’s indeed acting corruptly. And right now, the corruption of the Supreme Court is staring the American people in the face, as if daring them to recognize it, even as the conservative justices likely believe that no recourse is either possible or legitimate against it.
But as Jamelle Bouie reminds us, the Constitution does in fact contain various provisions that make clear the ability of Congress, and by extension the American people, to limit the reach of the Supreme Court and the judiciary more broadly. These include Congress’ ability to regulate what kinds of cases the Court can hear, to require a supermajority for certain types of decisions, and even to increase or decrease the size of the Court. In other words, the tools are available, for those willing to use them, to push back against a Court that has seized too much power for itself against the interests of majority rule and commonly agreed-upon conceptions of freedom and equality. What we are experiencing today are basic power struggles that the framers anticipated we might well experience, and we are fully empowered by actual constitutional provisions — as well as by basic ideas of fairness and morality — to set matters to right by new laws that protect the public interest.