In a fascinating opinion article titled How the Supreme Court Broke Congress from the Atlantic Magazine, there is a long list of progressive legislation that has been struck down or stymied by the Supreme Court. The result is that Congress and its ability to pass new laws or defend older laws has been eroded.
Congress has been disempowered and kneecapped by the nation’s highest court. Any excuse or no excuse (with the court’s Shadow Docket) will do to take away Congressional power and invalidate any law or decades-old court precedent (like the 1973 Roe Vs. Wade abortion decision).
The court invalidated the core provisions of the Family and Medical Leave Act (FMLA), came within one vote of striking down the Affordable Care Act, struck down the Gun-Free School Zones and the Violence Against Women Acts, decimated the Voting Rights Act, denied Congress’ most significant efforts to regulate private money in public elections with the Citizens United decision, and immunized partisan-drawn maps from federal-court scrutiny in the Court’s with the Rucho v. Common Cause. decision. These are just a few sample attacks on progressive legislation by the court.
Congress’ attempt to pass laws that do not benefit the wealthy has mostly become a waste of time. They will be likely struck down or severely limited as the article above notes.
However, a bill that maintained low tax rates that favored the wealthy and corporations and gave $170 billion to greatly expand a federal immigration police force to enforce a low-level misdemeanor violation of the law (being undocumented while living in the US) did pass.
The court found no reason to interfere with the government spending tens of billions of dollars to send federal police to violently arrest the undocumented based on a law with a similar misdemeanor penalty to driving with an expired license or shoplifting. While the “punishment should fit the crime”, the brutish methods of arrest and detainment are allowed to have virtually no relationship to the seriousness of the offense at all.
When FDR was attempting to pass New Deal legislation in the 1930’s, the conservative majority court struck down a wide array of New Deal legislation. A frustrated FDR proposed a court expansion or packing measure that threatened to expand the Supreme Court, adding more progressive judges to the mix.
There was resistance to the proposed legislation, which did not pass. But the Supreme Court justices took notice and eventually accepted much of FDR’s New Deal Legislation. The justices realized they were vulnerable and accountable to the legislative branch and softened their resistance to the progressive legislation of the New Deal.
Today’s Supreme Court needs to be put in a similar position, as they have become judicial activists in the extreme and have consistently vetoed (or stuck down) both old and new legislation that is not supported by their conservative friends.
They make poor decisions which reduce the rights of citizens while increasing those of corporations (corporations are now “people” with constitutional rights).
They use the shadow docket to make legally indefensible decisions without arguments or any legal basis.
They make decisions that allow a right-wing billionaire like Elon Musk to aid in the election of a President by contributing $250M to his campaign.
What is the value of the principle of “one person, one vote” and “claims of government for and by the people” when a torrent of right-wing money can buy a presidency?
A citizen has the volume of “speech” of a can attached to a string, and a billionaire has a bull horn the size of a skyscraper, but the Supreme Court appears to corruptly believe that the principle of “free speech” remains intact.
Then there is the ridiculous argument accepted by SCOTUS that money is equivalent to constitutionally protected “speech” (money “is” speech). Money can buy most things – cars, houses, vacations, clothes, advertising, etc. So, the wealthy with the court’s agreement ask, “Why not call money speech and allow us to buy an election?”
Money is NOT speech. It can buy speech (advertising) just like it can buy food. If “money is speech” then money is also food because it can buy food (sounds silly because it is silly). By this reasoning, if money is speech and money is also food, then “food is speech.”
This is the kind of absurd reasoning that passes for jurisprudence in recent Supreme Court decisions. But behind this silliness and verbal sleight of hand are billionaires and corporations owning and financing right-wing radio and television news channels while purchasing elections that threaten the democratic system.
There are many other consistently right-wing decisions that have shown that SCOTUS can no longer be trusted to promote democracy and protect the rights of individuals.
They have been behaving like aristocrats and feudal “lords of the manor.” They believe they are untouchable.
It is time for Congress to draw up and vote on a law that threatens to redesign and “pack the court” to provide some balance to a court that is badly skewed towards “conservatives” and their monied interests – that is towards the wealthy and big corporations.
The court is slowly reaching the point where they have lost all credibility and respect from the public. The Democratic party would be wise to make court expansion part of their platform for the upcoming elections.
Making arguments for “judicial independence” and fairness should not stop this law from being drafted and passed. The court has made little effort to demonstrate its independence based on how biased its decisions have been and its continued obstruction of progressive laws.
Arguments of overreach of executive power (should a Democrat be elected President) will also not hold any water.
When has the current President or Congress sought to limit executive power? Overreach almost to the point of dictatorship now best describes our present right-wing dominated government.
When has a court that will not sanction its members when they accept bribes directly from billionaires shown any restraint or evidence of independence?
A congressional investigation found that Justice Thomas accepted bribes worth $4.75 million by some estimates that went unreported but Thomas justified it as a gift from a “family friend.” When has friendship been more toxic to our courts and democracy than when it serves as a justification for crony capitalism, bribery, and insider politics in a supposedly independent judiciary?
Justices Alito and Gorsuch have also accepted expensive gifts or trips.
To summarize, if there is a way to take our Constitutional and personal ideals and twist the meaning of language to chip away at democracy and benefit their wealthy, corporate friends, the right-wing justices on the Supreme Court will find it.
Friendship excuses bribery. Free speech justifies corporations and the wealthy buying elections and public officials. The Inalienable rights of persons all of a sudden apply to corporations (who now “are” people).
A random person with a gun is corruptly assumed by the court to be a member of a “well-regulated militia” to support the right-wing’s desire to flood the nation with guns. This is despite the fact that there may be no evidence of virtually any gun owner being part of any “well-ordered and well-disciplined militia” as described in the British Militia Act of 1757 on which the 2nd Amendment to the Constitution is based.
Wake up Democrats. Make every effort to expand the court and take back our democracy in the process.
Even the threat of court expansion, when a large portion of the population supports it can move mountains that formerly seemed fixed as FDR demonstrated.
So, Democrats should continue to talk about affordability but also find a way to increase public support to expand the Supreme Court.
Attempts to become relevant are mostly destined to fail as the court continues to reject most efforts to implement progressive legislation while they also continue to accept and even seek out cases that might further limit the rights of citizens and expand the rights of corporations.
Almost no piece of progressive legislation, past, present, or future, seems to be safe from this right-wing judicial Cuisinart. It has been like a category 5 hurricane laying waste to progressive legislation that improves the lives of ordinary citizens while at the same time empowering billionaires and corporations.
The court has become a powerful institution of government that consistently supports an oligarchy in what is supposed to be a democratic country.
Up until now, Democrats in Congress have proven themselves to be too weak and divided to do anything to challenge the Supreme Court.
It is time for them to strongly support a dramatic change to the structure of the court.
