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- Republicans have been working for decades to take back control of the Supreme Court.
- The Court has long protected the corporate elite rather than the will of the people.
- Instead of revering the Supreme Court, liberals need to work to limit its power, for the sake of democracy.
- Astra Taylor is a writer, filmmaker, and organizer.
- This is an opinion column. The thoughts expressed are those of the author.
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The Supreme Court of the United States is incompatible with democracy. The news out of Texas is just the latest piece of evidence in that case.
Instead of defending vulnerable minorities against a powerful majority, the Supreme Court is invested in protecting the interests of a powerful and wealthy minority.
This is a result of the right-wing’s well-funded, decades-long plan to take over the judicial system – a plan now paying dividends in the form of warped, one-sided decisions that make a mockery of the idea of checks and balances. These decisions portend a future in which basic rights and popular policies are undone or blocked, further entrenching the power of corporate elites.
It’s time for liberals to stop revering the Supreme Court and start treating it as the democracy-sabotaging institution it is – and to strategize a counteroffensive.
Let’s refresh what just happened: After being asked for an injunction by reproductive justice advocates, the Supreme Court voted by a 5 to 4 margin not to intervene to halt the most draconian anti-abortion law in the land.
The new Texas legislation undermines Roe V. Wade by making the vast majority of abortions illegal. It breaks terrifying new ground by incentivizing private citizens to police each other, empowering random individuals to file lawsuits against anyone who can be deemed to “abet” the act of a woman getting an abortion after six weeks of pregnancy – be they doctors, therapists, friends, or even rideshare drivers. These bounty hunters can be awarded up to $10,000 for their trouble.
This devastating blow to women’s rights comes on the heels of the recent Supreme Court decision to scuttle the White House’s extension of the federal eviction moratorium. The pause on evictions, the concurring justices opined, would be a slippery slope, leading to other executive branch protections for sick and vulnerable people. Better, then, to nip it in the bud, even if that means putting millions of families in the streets as the Delta variant surges.
The Court has long served to protect the powerful
For people who grew up hearing about the glories of Roe V. Wade and Brown V. Board of Education, the Supreme Court’s callous right-wing turn might seem like a shocking and sudden development. In fact, it is a reversion to the historical norm. Since the nation’s founding – with some vital and welcome exceptions – the Supreme Court has typically ruled on the side of the powerful and enforced an unjust status quo. Recall its role in upholding slavery in the antebellum period, or what’s known as the “Lochner era” from the late 1800s to 1937, during which the court attacked basic labor protections and economic regulations, including minimum wage.
After losing the Supreme Court to liberals in the middle of last century, conservatives regrouped and decided to play the long game. Corporate elites made retaking the courts a priority and invested accordingly. Conservative activists nurtured what Michaela Brangan, faculty in the Amherst Law Department, calls “legal cadre” – a pipeline for ideologically extreme justices and funding for a tsunami of litigation.
“The right’s strategy has been bearing fruit via a growing number of cases for years,” Brangan told me. “But the real harvest has been in the form of the current Court, whose majority comes directly from the cadre ranks.”
The fruits of these efforts include decisions such as 1976’s Buckley V. Valeo and 2010’s Citizens United V. FEC, which both tightened the vice grip of big money on our political system, eroding democracy by increasing the power of big donors and corporations. There was also 2000’s Bush V. Gore, in which five unelected individuals installed a president who had lost the popular vote. Both George W. Bush and Donald Trump were losers in that regard, and yet together they were able to appoint five justices to the Supreme Court bench.
No wonder today’s Republicans recognized the courts as essential to their success. As I’ve written elsewhere, the Republican party has radicalized against democracy. Unable, or rather unwilling, to adapt their strategies to win over a majority of voters, they lean on other tools to ensure their dominance – including erroneously claiming election fraud to justify a spate of voter suppression laws.
This duplicitous approach is all the more egregious given that the rules already tilt dramatically in their favor: The Electoral College favors rural Republican States – as does the Senate – and gerrymandering means Republicans can win a majority of seats in Congress even though they win less votes than the opposition. Taking control of the Supreme Court is the icing on the anti-democratic cake.
Democrats can do more
Republicans aren’t the only ones who deserve blame. The court’s 5 to 4 decision not to intervene in the Texas anti-abortion law is a reminder that had Ruth Bader Ginsberg stepped down in the early days of the Obama administration, there would likely have been a different outcome. The lionization of Ginsburg obscured the harm she committed by refusing to quit. Sadly, 83-year-old liberal justice Stephen Breyer appears set to make the same mistake, telling The New York Times, “I don’t like making decisions about myself.” Breyer needs to realize this decision is not, in fact, about him. It is about all of us. For the good of democracy, Breyer must retire.
Liberals cannot afford any more missteps. Democrats control the executive and legislative branches, which means they have the power to push back – a power they may lose after the midterms.
Democrats in Congress can and must maneuver around the filibuster and pass expansive protections of voting and labor rights – the For the People Act and the PRO Act, respectively – as a way to rebalance the political playing field, empower working people, and prevent Republican electoral shenanigans at the state level. As a candidate, President Joe Biden vowed to pass legislation to make Roe “the law of the land.” He should tell Congress to overrule the Texas legislature, for example, by passing the Women’s Health Protection Act.
The stakes could not be higher. With the Supreme Court in conservative hands, Republicans have judges ready to strike down any liberal reform that they or their donors object to – regardless of whether such reforms are supported by the majority of the American people. Should Democrats manage to pass a Green New Deal or universal healthcare, the Court will be standing by to gut it.
Such tyranny is unacceptable. The Lochner era only came to an end when Franklin D. Roosevelt threatened to pack the court. Joe Biden needs to do the same – and he should actually follow through.
The Court must be dethroned
Looking forward, liberals need to develop a court-seizing strategy of their own, akin to the project conservatives launched decades ago. But instead of strengthening the judicial branch, progressives must aspire to put the judiciary in its proper place. When it comes to the Supreme Court, Brangan maintains liberals “should full-throatedly support any and all efforts to limit its power.” The courts should be an adjunct – not an arbiter or an adversary – of popular government.
This urgent change starts within. The Supreme Court must be dethroned within the liberal imagination. For too long, progressives have romanticized the institution, attached to it a misguided ideal of enlightened justice meted out from on high – an ideal that is anti-democratic and counter-productive.
Real democracy can only be built from the bottom up. As scholar Keeanga-Yamahtta Taylor put it in a New Yorker essay entitled “The Case for Ending the Supreme Court as We Know It,” the court’s finest moments – often aimed at reversing earlier bad decisions – typically followed in the wake of mass social movements and unrest.
Right now, across the country, grassroots activists are helping women access abortions, fighting evictions, strengthening unions, and responding to climate change. Unlike the justices sitting on the bench, determined rule on behalf of out-of-touch elite, these movements remain democracy’s best hope.