On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable. Just as we need to preserve the sanctity of elections (by prosecuting coup instigators), democracy defenders need to address judicial radicals’ gross distortion of our system, resulting in the current Supreme Court’s subversion of democracy.
Unhinged from judicial standards, the court now roves through the policy landscape, overturning decades of law and reordering Americans’ lives and institutions. It upends women’s health, revamps college admissions, snatches student aid from millions and redefines public accommodations (allowing egregious discrimination). In aggrandizing power, the court illegitimately dominates policymaking, undermining democracy to an extent we have not seen in nearly 100 years. (Ronald Brownstein pointed out that similar constitutional collisions in the 1850s and 1930s took a civil war or threat of court-packing to resolve.)
Something must change if we want to preserve rule by the people’s elected leaders responsible to voters.
As a preliminary matter, it is essential to identify the problem. As morally and politically offensive as Supreme Court decisions on affirmative action, LGBTQ+ discrimination and student debt forgiveness might be to millions of Americans, merely criticizing the court’s result is misguided and unproductive. The task is to expose the court’s disintegration as a legitimate judicial body and note its emergence as a supreme right-wing policymaker. When the court operates on an ends-justify-the-means basis, shreds legal doctrine and dishonestly presents the facts, critics should not play whack-a-mole, decrying each individual rejection of widespread American values. In doing so, the court negates self-government.
One telltale sign that the justices have become partisan politicians: their refusal to adopt mandatory ethics rules, which destroys the essence of judicial impartiality that is the root of their legitimacy. When judges cease to eliminate conflicts of interest or the appearance thereof, they appear indistinguishable from politicians wined and dined in rarefied settings by lobbyists. The stench of financial corruption, coupled with justices’ intemperate rants in partisan settings and in op-eds, convinces Americans that the justices are partisan players out to score points for their own side.
Moreover, the court strays out of its constitutional lane when it refuses to follow consistent rules of construction and honestly address cases’ facts. When, for example, the majority casts aside stare decisis (as in the affirmative action case) without admitting it or refuses to apply the test for departing from precedent (as in Dobbs v. Jackson Women’s Health Organization), it is simply muscling its way to desired outcomes because it has the votes.
Worse, cases are now manufactured to create policy. The majority has made complete hash out of standing and concepts such as “case and controversy” to reach decisions it had no business deciding.
In the student loan debt relief case, the court created standing out of whole cloth. As Justice Elena Kagan wrote in her dissent, “The requirement that the proper party — the party actually affected — challenge an action ensures that courts do not overstep their proper bounds. … Without that requirement, courts become ‘forums for the ventilation of public grievances’ — for settlement of ideological and political disputes.” Here the court deliberately ignored that the aggrieved party was not a litigant. Likewise, in the case of a web designer worried about selling her services to a gay couple (who appear to be fabricated), the court defied every principle of standing. When the court goes beyond actual cases and controversies to answer hypotheticals, it goes beyond its constitutional mandate.
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And, worst of all, the newfangled “major questions doctrine” allows the court to subjectively decide when the issue is of “major political salience” (whatever the court says it is); if so, the court demands the application at issue be specifically authorized by statute (a standard lawmakers somehow never meet in this court’s eyes). It has become a crutch whenever the court seeks to invalidate a program it doesn’t like. In the student debt relief case, the court reached the desired result by ignoring the word “waive” in the statute authorizing loan forgiveness to reach the finding that Congress hadn’t delegated power to, well, waive student debt. “The Court once again substitutes itself for Congress and the Executive Branch — and the hundreds of millions of people they represent — in making this Nation’s most important, as well as most contested, policy decisions,” Kagan wrote.
The mumbo-jumbo “major questions doctrine” is not the stuff of judging. No wonder the chief justice got touchy when Kagan pointed out that the court “is supposed to stick to its business — to decide only cases and controversies and to stay away from making this Nation’s policy about subjects like student-loan relief.” What the Slaughter-House Cases and substantive due process were to the New Deal-era right-wing court, the “major questions doctrine" is to the current court: a smokescreen for enforcing a right-wing agenda (or vetoing a progressive one).
In departing from the authentic judicial review, the right-wing majority unsurprisingly produces results perfectly aligned with the right’s agenda on hot-button topics. (By the law of averages, its “analysis” should occasionally favor the other side.) When foretelling a case’s outcome or following the majority’s “reasoning” requires a crib sheet on GOP political aims, something is wrong.
And voters have figured out what’s going on. According to an ABC News-Ipsos poll, 53 percent “believe that the nation’s highest court rules mainly on the basis of their partisan political view rather than on the basis of the law (33%), while 14% say they don’t know.” Before the Dobbs opinion, a separate January 2022 poll showed that “38% of Americans believed that the justices rule mainly on the basis of law, versus 43% who believed that the court rules on the basis of their political views.”
The transformation of the court into a partisan player contradicts the central premise of democracy. We should reject the obtuse and naive argument that this court isn’t so bad because it didn’t entirely obliterate Section 2 of the Voting Rights Act and declined to impose the outrageous independent state legislature doctrine. Now is no time for self-delusion. Ending the right-wing majority’s intolerable war on self-government will require that the other two branches and the voters cut the court down to size. A single election or a single reform might not suffice. Cogent law review articles, informed public debate and exquisite dissents revealing that the right-wing judicial emperors have no clothes can assist reformers. Term limits, jurisdiction stripping, court expansion and ethics reform should be on the table. Simply put, if we want democracy to survive, each election must be a referendum on the court’s legitimacy.
On this Independence Day, which celebrates rebellion against a monarch lacking consent of the governed, it behooves us to dedicate ourselves to robust and authentic democracy: government of the people, by the people, for the people — not by arrogant right-wing justices.
Unhinged from judicial standards, the court now roves through the policy landscape, overturning decades of law and reordering Americans’ lives and institutions. It upends women’s health, revamps college admissions, snatches student aid from millions and redefines public accommodations (allowing egregious discrimination). In aggrandizing power, the court illegitimately dominates policymaking, undermining democracy to an extent we have not seen in nearly 100 years. (Ronald Brownstein pointed out that similar constitutional collisions in the 1850s and 1930s took a civil war or threat of court-packing to resolve.)
Something must change if we want to preserve rule by the people’s elected leaders responsible to voters.
As a preliminary matter, it is essential to identify the problem. As morally and politically offensive as Supreme Court decisions on affirmative action, LGBTQ+ discrimination and student debt forgiveness might be to millions of Americans, merely criticizing the court’s result is misguided and unproductive. The task is to expose the court’s disintegration as a legitimate judicial body and note its emergence as a supreme right-wing policymaker. When the court operates on an ends-justify-the-means basis, shreds legal doctrine and dishonestly presents the facts, critics should not play whack-a-mole, decrying each individual rejection of widespread American values. In doing so, the court negates self-government.
One telltale sign that the justices have become partisan politicians: their refusal to adopt mandatory ethics rules, which destroys the essence of judicial impartiality that is the root of their legitimacy. When judges cease to eliminate conflicts of interest or the appearance thereof, they appear indistinguishable from politicians wined and dined in rarefied settings by lobbyists. The stench of financial corruption, coupled with justices’ intemperate rants in partisan settings and in op-eds, convinces Americans that the justices are partisan players out to score points for their own side.
Moreover, the court strays out of its constitutional lane when it refuses to follow consistent rules of construction and honestly address cases’ facts. When, for example, the majority casts aside stare decisis (as in the affirmative action case) without admitting it or refuses to apply the test for departing from precedent (as in Dobbs v. Jackson Women’s Health Organization), it is simply muscling its way to desired outcomes because it has the votes.
Worse, cases are now manufactured to create policy. The majority has made complete hash out of standing and concepts such as “case and controversy” to reach decisions it had no business deciding.
In the student loan debt relief case, the court created standing out of whole cloth. As Justice Elena Kagan wrote in her dissent, “The requirement that the proper party — the party actually affected — challenge an action ensures that courts do not overstep their proper bounds. … Without that requirement, courts become ‘forums for the ventilation of public grievances’ — for settlement of ideological and political disputes.” Here the court deliberately ignored that the aggrieved party was not a litigant. Likewise, in the case of a web designer worried about selling her services to a gay couple (who appear to be fabricated), the court defied every principle of standing. When the court goes beyond actual cases and controversies to answer hypotheticals, it goes beyond its constitutional mandate.
Press Enter to skip to end of carousel
And, worst of all, the newfangled “major questions doctrine” allows the court to subjectively decide when the issue is of “major political salience” (whatever the court says it is); if so, the court demands the application at issue be specifically authorized by statute (a standard lawmakers somehow never meet in this court’s eyes). It has become a crutch whenever the court seeks to invalidate a program it doesn’t like. In the student debt relief case, the court reached the desired result by ignoring the word “waive” in the statute authorizing loan forgiveness to reach the finding that Congress hadn’t delegated power to, well, waive student debt. “The Court once again substitutes itself for Congress and the Executive Branch — and the hundreds of millions of people they represent — in making this Nation’s most important, as well as most contested, policy decisions,” Kagan wrote.
The mumbo-jumbo “major questions doctrine” is not the stuff of judging. No wonder the chief justice got touchy when Kagan pointed out that the court “is supposed to stick to its business — to decide only cases and controversies and to stay away from making this Nation’s policy about subjects like student-loan relief.” What the Slaughter-House Cases and substantive due process were to the New Deal-era right-wing court, the “major questions doctrine" is to the current court: a smokescreen for enforcing a right-wing agenda (or vetoing a progressive one).
In departing from the authentic judicial review, the right-wing majority unsurprisingly produces results perfectly aligned with the right’s agenda on hot-button topics. (By the law of averages, its “analysis” should occasionally favor the other side.) When foretelling a case’s outcome or following the majority’s “reasoning” requires a crib sheet on GOP political aims, something is wrong.
And voters have figured out what’s going on. According to an ABC News-Ipsos poll, 53 percent “believe that the nation’s highest court rules mainly on the basis of their partisan political view rather than on the basis of the law (33%), while 14% say they don’t know.” Before the Dobbs opinion, a separate January 2022 poll showed that “38% of Americans believed that the justices rule mainly on the basis of law, versus 43% who believed that the court rules on the basis of their political views.”
The transformation of the court into a partisan player contradicts the central premise of democracy. We should reject the obtuse and naive argument that this court isn’t so bad because it didn’t entirely obliterate Section 2 of the Voting Rights Act and declined to impose the outrageous independent state legislature doctrine. Now is no time for self-delusion. Ending the right-wing majority’s intolerable war on self-government will require that the other two branches and the voters cut the court down to size. A single election or a single reform might not suffice. Cogent law review articles, informed public debate and exquisite dissents revealing that the right-wing judicial emperors have no clothes can assist reformers. Term limits, jurisdiction stripping, court expansion and ethics reform should be on the table. Simply put, if we want democracy to survive, each election must be a referendum on the court’s legitimacy.
On this Independence Day, which celebrates rebellion against a monarch lacking consent of the governed, it behooves us to dedicate ourselves to robust and authentic democracy: government of the people, by the people, for the people — not by arrogant right-wing justices.
