When Donald Trump led an armed mob to the steps of the Capitol and urged them to carry out an assault on the electoral process, his efforts failed in their primary goal of overturning the election and installing a single, unelected authoritarian ruler. However, it turns out we didn’t have to wait for 2024, or even the midterm elections, for Republicans to have another go at upending democracy. There’s no question about whether America will get unelected authoritarian dictators unfettered by either rules or traditions: We now have six of them.
The idea that the Supreme Court is the final and unchallenged arbiter of both which laws are valid and how they should be applied was always extraordinarily dangerous. It endows the U.S. Supreme Court with a level of control unmatched in the great majority of nations. Like the U.S. Senate, the Court has long operated on a set of understandings and traditions that have held in check that inherently unlimited power. And just as Mitch McConnell demonstrated in the Senate, understandings and traditions are less than nothing when confronting absolute zealotry and forthright disdain.
Trump’s coup attempt failed. But the Republicans have found six new despots who are cheerfully assaulting not just the rights of every American, but the foundations of democracy. They are unelected. They answer to no one. They’re there for life. In two weeks they’ve rubbed out rights that thousands fought and died to obtain over the course of decades. They have blown away the basis of functional government. They are erasing not just progress, not only democracy, but America as a nation—and they’re doing it quickly.
The only thing that makes the U.S. Supreme Court sustainable at all is the idea that the members will act in good faith to interpret and apply the law for the benefit of the nation. It has always been the case that there were Justices and Courts who ignored that constraint to reflect their own prejudices, or in the name of political expediency. The Court has made past decisions that were boneheaded in their foolishness, ghastly in their spitefulness, and also sublime in their far-reaching vision.
But there has never, in the history of the nation, been anything like what’s happening now.
The current Supreme Court is not interpreting the rules of the nation. It is redefining the nation: remaking America in the image of a radical minority over the express wishes and written law of the majority. It’s not the “Judicial activism” Republicans have fretted over so long. It’s a Court coup.
The overturning of Roe v. Wade may be the most shocking, most personal, and most powerful expression of this Court session. Stripping away a human right held for half a century, and doing so with not just evident glee, but warnings of more to come, definitely draws attention. However, it’s genuinely hard to tell if ending Roe is really the worst thing that the Court has done in the past two weeks. Maybe that moment came when the Court didn’t just blast apart the wall between church and state, but annulled its very existence. Maybe it came when the contrast between the “back to the states” ruling on Roe and the “you can’t trust the states” ruling on guns made clear that this Court is not even bothering to pretend to a measure of fairness or consistency.
As April Siese reported, on Thursday the Court ruled that the Environmental Protection Agency is no longer empowered to protect the environment. And while that ruling specifically addressed limits on greenhouse gases, its consequences are so far reaching it’s not clear that this nation, or any nation so hobbled, can withstand them. As Justice Kagan wrote in her dissent, this is a Court that is not operating according to a good faith interpretation of the Constitution, or to past understandings of the constraints set on Court actions. Instead, it is moving toward “goals.”
Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.
Damn the Constitution, full speed ahead … toward a nation that is, not figuratively, but literally ungovernable. The ability of regulatory agencies to investigate or enforce regulations is now not just more limited, but fundamentally subject to challenge at every step. There is no regulatory authority—on safety, on housing, on education, on hiring—that cannot be challenged under the ruling and concurrence on this case.
That the Court also devoted some time last week to gutting the protections provided over the past five decades under Miranda, but allows that you can pick the means by which you are executed after being falsely accused and convicted, barely seems worth a mention. Looking beyond just the last couple of weeks, there have been a series of cases in which this Court made clear that law enforcement agencies are allowed to operate without respect for constitutional rights.
As Joan McCarter reported last week, this is a court that has gone rogue. It has blasted out of the role the Court is supposed to perform in the system and taken on the dictatorial position of creating a wholly new United States without even a passing nod to past Court decisions or a pretense of finding justification within the Constitution. Conservative extremists have been talking about fighting a “second Civil War,” but it turns out they need not bother. This Court will give them victory over the majority without firing a shot.
On Thursday, the Court declared it would take up a case in which the ruling could allow states to redefine how they conduct elections. As Stephen Wolf reports, this case could have disastrous consequences. The same Justices who refused to glance at the relevant text when it came to the Roe or EPA decisions are likely to crack open that parchment just long enough to determine that only state legislatures are empowered to set up district boundaries, lay out how elections are conducted, and determine the winners.
Nothing the Court has done in the past weeks represents the will of the majority of Americans or the expression of that will through Congress. The Court is running roughshod over democracy, and the damage it has done—not just in Roe, but in a whole series of cases—constitutes a national emergency that must be addressed if the United States is going to maintain even a semblance of functional government.
Unlike most nations, there is very little safety net provided in case of Court gone wild. In fact, there’s only one practical answer: Expand the Court.
The only answer to the six red-hot despots now ruling the nation is to turn them back to what they are in reality—the most extreme voices of a radical minority. Expanding the Court isn’t just the only hope to reverse the disastrous ruling on Roe, it’s the last, best hope for America.
Privacy as a foundational value in a post-Roe landscape on Daily Kos' The Brief podcast