Supreme Court reform just got a major endorsement from a former president, at the same time the current president is openly questioning the Court’s role as arbiter of democracy. Former President Barack Obama was interviewed Friday on Crooked Media’s Pod Save America, hosted by a cadre of former Obama speechwriters, where he talked about the need for Court reform for the first time.
“I’m open to it,” Obama said about Court reform, after bringing up the issue of the Court. This, says Aaron Balkin, political science professor and president of Take Back the Court, is “a *major* inflection point, the 1st time in nearly 100 yrs that a President has suggested the Court is so broken that it must be reformed.”
Obama raised the issue of the Supreme Court himself, saying that the Dobbs abortion decision eliminating the constitutional right to an abortion means that “that a lot of rights that we’ve taken for granted—one through enormous struggle and mobilization over the last 40, 50 years—those aren’t rights that we can take for granted.”
“You know, if Roe versus Wade can be overturned, then it’s likely that a significant part of this Supreme Court is less concerned about issues of privacy and personal freedom generally, which means that LGBTQ rights can be at risk,” he continued. “It means that you know, basic precepts about, you know, the state staying out of how we think about family and relationships, that those are all called into question.”
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He brought the Court into the discussion again later in the podcast, saying the Court “to put it charitably does not seem as invested in overseeing and stopping monkey business at the local level,” when it comes to preserving democracy. That finally led to the hosts asking about reforms to restore the Court’s legitimacy with the American public.
Obama’s saying “I’m open to it” is kind of a big fucking deal, even though he was his usual measured self in stating it. “I think it has to be thought through,” he continued. “One of the arguments we made at the time when McConnell decided that, to invent a new principle that he then breached later about Merrick Garland and why the guy wouldn’t even get a hearing or a vote, is that if, if you start playing such explicit political games in the appointment process, it’s hard for people not to feel as if this is just an extension of day-to-day congressional politics, as opposed to, the Supreme Court stands above, to some degree, those politics.”
He added, “I do think that if we reform the Supreme Court simply by figuring out ways to get more Democrats on there and stack it up, then it’s not gonna solve the legitimacy problem the Supreme Court, it’s just that we’ll win more cases for a while.” A very Obama kind of response to the question, who is not going to go where liberal activists are in calling out the Supreme Court’s conservatives for what they are: political operatives using their power to advance their partisan agenda.
He’s not going to call out the extremists on the Court for what they are. That’s not his style. But it helps build the narrative, nonetheless, and the idea of the necessity of Court reform continues to grow. Like on the op-ed pages of The New York Times, where guest editorialists Joseph Fishkin and William E. Forbath lay it all out.
“The comforting notion of the court as umpire lies in tatters,” the authors write. “It is Justice Samuel Alito’s court now: methodologically flexible but ideologically rigid.” They argue that to fight the oligarchy the Court is championing, “liberal lawmakers should view the court primarily as a hostile political actor with its own distinctive political incentives, internal divisions, and weaknesses.”
There are solutions beyond expanding—or unpacking Trump and McConnell’s handiwork, as it were. Congress has the power to limit the kinds of appeals that the Supreme Court can take, a measure that Democrats actually used to protect some provisions of the Inflation Reduction Act they passed this summer. That depends on a Democratic Congress, however. So does court expansion—the most expeditious and urgent response to an out-of-control conservative majority.
It can’t happen too soon. In Obama’s interview, that “monkey business at the local level” he was talking about was about our elections, and presumably in part the Court’s decision to take on the absurd “independent state legislature” theory that would take that local level madness to an extreme—giving state legislatures the ultimate authority in federal elections, over their governors and their state supreme courts. The case they’ve got listed for this session is from North Carolina. Ohio Republicans just asked the Court to intervene against the state Supreme Court there to strike down the congressional map being used for this election.
We are truly at an inflection point this election—the Court has already been captured by the extremists, and Congress hangs by a thread. Several critical battleground states are teetering, with the balance leaning toward the extremist authoritarians. It could all be over for the country in 2024 with another Trump run and stolen election.
That makes electing Democrats to key positions downballot this year urgent. They will be crucial bulwarks against right-wing attempts to steal the election in 2024. To that end, Daily Kos has endorsed 17 Democratic candidates for attorney general, secretary of state, and state supreme court across eight crucial states.
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