Yesterday, I made the case that the Supreme Court is no longer legitimate because three of its justices were picked by Donald Trump (who didn’t win the majority of the popular vote) and confirmed by a Senate where the Republican majority of Senators don’t represent a majority of the nation’s voters. These three justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—should resign. Then, President Biden, who did get a majority of the popular vote, and the Senate led by Democrats, who do represent a majority of the voters, should go through the normal nomination and confirmation process to replace these justices. In fact, I think the replacements should be confirmed by no less than 60 Senators, to show they have broad support across the country, and thus make their legitimacy clear.
You may be forgiven for thinking that Gorsuch, Kavanaugh, and Coney Barrett will never give up their seats unless forced. So, what would force them?
Actually, the President has a stick big enough to dislodge them. That’s his acceptance of the SCOTUS as the final arbiter of constitutional law. There’s no real constitutional justification for giving the Court this power. It’s a convention.
It’s a convention based on long precedent. In 1803, the Supreme Court handed down a decision in the case of Marbury v. Madison that established the right of courts to strike down laws, statutes, and some government actions the Court believes violate the Constitution. Since then, the other two branches of government have accepted as final any SCOTUS decisions about constitutionality.
But that’s not grounded in anything other than custom. The Legislative, Executive, and Judicial branches are co-equal. They are supposed to be on equal footing, and they are intended to cooperate. The Executive Branch, for example, has just as much right to decide what is constitutional as the Judicial Branch. Constitutionally, it is just as valid for the President to say that the Executive Branch will decide whether a law is constitutional as it is for the Supreme Court.
And, politically, it is important for President Biden to show Republicans that he can take strong action. One of the things that most hampered the Obama Administration was the complete lack of respect his opposition had for him. Biden needs to teach the Republicans they must respect him. Forcing their cherished appointments off the Court would definitely do that.
If the Trump presidency has proven anything it’s that massive changes in our society can be accomplished by simply failing to uphold convention. Democrats should use the letter of the law to force the Trump picks off the Court. Biden should ask them to resign. But if they don’t, he should announce that the Executive Branch will no longer accept rulings by the Court on constitutional law, as long as these three justices continue to serve on the Court.
It’s unlikely Joe Biden will pursue this strategy. I think he’s too worried about appearances or the political repercussions of forcing important changes without the backing of the Republicans. Or at least their tacit approval. He prefers to work with Republicans. But he will never get Republican approval to undo what they’ve spent years working to accomplish.
The unfortunate consequence is that the Biden presidency will be hobbled by an arch-conservative Court, second-guessing everything he does. That might suit the conservative side of Biden, and maybe the conservative side of his team and their backers.
Really, the kind of changes required to stave off catastrophic climate change, for example, will probably require some very uncomfortable actions by major corporations, and the success of Biden’s climate initiatives may well depend on whether the Court backs up his actions. But the corporations that gave campaign contributions in this cycle are not going to be happy about making those changes. If they can go to the Court (maybe with an amicus brief from the U.S. Chamber of Commerce) and beg off, they will be satisfied. So, there may be many forces on the Democratic side of the equation that are just fine with these justices squeezed onto the Court by the Republicans.
It’s not good for the vast majority of people in this country, that’s all.
Another unfortunate consequence is that Biden will have shown, once again, authoritarians can make radical, anti-democratic changes during crises, but democrats can never roll back those changes once we regain power. The Republicans will have successfully ratcheted up authoritarianism another notch. And the public will simply be stuck with this outcome.
However, if President Biden did use the Constitution as leverage it would put enormous pressure on these three justices to vacate their seats. The specter of Biden making his own decisions about the constitutionality of his actions would be a very powerful motivator. More specifically, the Justice Department would be freed from worrying about the Court in its investigations of Trump Administration officials. It could determine, for example, that because Donald Trump was never a legitimate President, none of his pardons have legal force.
In fact, none of the recent SCOTUS decisions would be enforceable. The government could go back to enforcing campaign finance law as it existed before Citizens United. Decisions about whether companies have to provide insurance for abortion could be under review.
Biden should not threaten to undo Marbury unless he plans to carry through. But it is possible even with this action, Trump’s picks might still want to cling to their seats. In that case, other pressure could be applied. Tomorrow, I’ll discuss potential next steps, if revoking the effect of Marbury isn’t sufficient. Hold on to your seat. Things could get “wild”.
EDIT (11 April 2023)
Since this original article came out in January 2021, obviously Joe Biden didn’t take my advice and force Justices to resign. Sorry.
Also, the question has been asked a number of times what he could then do about Republicans using this same tactic, should a Republican gain the White House.
My premise in this was that the President should force the Court to clean up its act. But there is more to this than just getting rid of a few bad Justices. He also needs to renegotiate the agreement between the branches so that we don’t arrive in this situation again.
I believe the root cause of this problem was allowing Justices to be seated who don’t have the backing of the majority of the American people. It’s a problem with the process, not the people.
So, I would look for an agreement where the President would not nominate anyone unless that President had won the majority of the popular vote, and the Senate would not confirm anyone nominated by such a President. In addition, the Senate would only confirm an appointment with votes that represent a majority of the voters. That could take more than fifty-one Senators, because many Senators represent small populations.
This is not an agreement Republicans can use to their advantage, because their whole strategy depends on minority rule.
If the current court had been elected by this process, we would not have a majority of Justices back such unpopular positions as repudiating Roe v. Wade. And the country would be the better for that.
Here are the links to the articles in this series:
Thursday: We Must Fix the Supreme Court
Friday: Republicans Packed the Supreme Court and We Must Unpack It
Saturday (this article): Applying Leverage To Unpack the Supreme Court
Sunday: Beyond Leverage To Unpack the Supreme Court
Note that the last of these was published after the current article.