The Supreme Court decided to preserve democracy Tuesday after a full year of keeping the nation on tenterhooks wondering which way it would rule in the case of Moore v. Harper, which could have handed nearly unfettered power of federal elections to state legislatures. That it was ever a question of the highest court in the land embracing a crackpot theory based on a 200-year-old lie demonstrates that we’ve got a serious problem with this court, and something needs to be done about it.
The court rejected the idea that state legislatures have the ultimate authority to decide on matters relating to elections, both state and federal, and that they can’t be overruled by governors or by the state supreme courts when it comes to making election policy. It’s as radical an argument to come before the court as any in recent memory, and the fact that the court even took it on in the first place is an indication of how dangerous the tilt of this court truly is. Three justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—dissenting on that decision is pretty frightening as well.
The majority rejected the most extreme interpretation of the theory brought by North Carolina Republicans, but it compromised a bit by not setting down a standard for when states overreach their bounds in setting election laws. “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” Chief Justice John Roberts wrote for the majority. What those “ordinary bounds” are is left open. That means the court is saving the final word on state laws when it comes to election disputes for itself. It means the Supreme Court litigating elections—with the gerrymandering, restrictions, and suppression efforts that come with them—is going to keep happening.
Also concerning is what the court did Monday, planning for the next session. It announced it’s taking on a case challenging part of the GOP Tax Scam of 2017. The plaintiffs, Charles and Kathleen Moore, argue the law violated the 16th Amendment, which allows Congress to collect federal income taxes with a one-time “mandatory repatriation tax,” making people who have significant holdings in overseas corporations pay taxes on that income. The challenge goes well beyond this one provision of this one law, which only was imposed on people one time. They want the court to rule on whether Congress has the authority to pass a “wealth tax,” like the billionaires’ tax Sen. Elizabeth Warren and other Democrats have championed. The argument they are trying to make is that wealth and assets aren’t income and thus can’t be taxed as such. The lawyers for the Moore specifically said in a Wall Street Journal op-ed that they brought the case to “slam shut the door on a federal wealth tax like the one Sen. Elizabeth Warren wants to enact.”
This is a case that normally wouldn’t even be heard by the Supreme Court. There’s no disagreement in the lower courts, which is the usual trigger for the higher court to take a case to settle the dispute. More to the point, though, the Supreme Court doesn’t get to dictate to Congress what legislation it can or cannot hypothetically take up. We don’t know which of the justices decided to hear this case; it takes just four of them to make that decision, and they generally do so anonymously.
The court has shown some restraint this session, giving a few pleasant surprises, especially when it comes to voting rights. That’s a good indication that it is reacting to the public outrage that’s been focused on the court since it overturned abortion rights last year. Not to mention the ever-growing ethics problems of Alito and Thomas. That’s one good reason to keep up a drumbeat of court reform.
That includes enforcing a code of ethics legislation the Senate Judiciary Committee is going to take up after the July recess. It could include establishing term limits of 18 years, and ensuring that every president gets to nominate two justices per four-year term.
The other really critical reason is there are still six scary people on the court who can pull the rug out from under democracy any time they feel like it. That’s why expanding the court has to be a serious option for Democrats. This majority is far too dangerous and has to be countered.
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