A Supreme Court Decision with a Body Count
The Supreme Court majority are extremist, partisan ideologues. They are not subtle about it.
Two years ago, I did not expect the Supreme Court would officially overturn Roe v Wade with the Dobbs decision. I thought they would completely gut Roe, while saying-with-a-wink that it was still the law of the land.
I figured they would choose that route — rendering abortion practically illegal while still insisting it was theoretically legal — because it would be the more savvy approach. It would have meant that every time a Democratic politician said “they just overturned Roe,” fact-checkers and mainstream news organizations would tut tut and include a correction. They could undermine womens’ bodily autonomy just as effectively without writing the words “ROE OVERTURNED” in big, block letters.
Sure enough, the Dobbs decision became a lightning rod. It is the single biggest reason why the expected “red wave” election in 2022 didn’t come to pass. If Biden (or Harris) wins in 2024, one of the biggest reasons will be Roe. It turns out that women don’t soon forget when you strip them of their rights.
The Supreme Court majority are extremist, partisan ideologues. And they aren’t subtle about it.
Yesterday’s Presidential Immunity decision in Trump v United States has the same feel. It was already abundantly clear that the Court was carrying water for Trump. Presidential immunity is not a thing. Trump’s lawyers made it up. If you read the contemporaneous coverage, it clearly originated as a delay tactic, and not a very good one at that. It was already a miscarriage of justice that the Court had (slowly) taken the case, (slowly) heard it, and waited until the last day of the term to announce their verdict. They were attempting to spare the Republican Presidential nominee the trouble of standing trial while running for office. (“Justice delayed is justice denied,” but spoken as a goal-setting exercise instead of a warning.)
All they had to do was send the case back to the lower court for further briefing. That would tack on an additional month or two, making it impossible for the trial to be scheduled before November. So that’s what I assumed would happen.
But the Supreme Court majority are extremist, partisan ideologues. And they refuse to be subtle about it.
(Serwer and Bouie, Drezner and Millhiser all have excellent, more-detailed discussions of the decision and its implications, btw.)
Let’s be clear on what this means.
This is a court decision with an attached body count.
If Donald Trump wins re-election, there will be mass protests during his second term. That much is a certainty. There were mass protests during his first term. No one is even giving lip service to the idea that the office will shape the man and drive him toward stability and moderation. Of course there will be protests.
Trump will surely claim that those protests have been “infiltrated by antifa.” He said that last time. He’ll say it again.
Trump will direct the military to attack those protestors. You may recall that he threatened to do so in 2020, stating “when the looting starts, the shooting starts.” His worst impulses were barely contained last time, thanks to generals who told him this was illegal.
According to John Roberts, Bret Kavanaugh, Amy Coney Barrett, Samuel Alito, Neil Gorsuch, and Clarence Thomas, it is illegal no longer. Trump is the Commander-in-Chief, and when he directs the military to attack American citizens engaged in counterspeech, he is acting in his official capacity. If members of the military are found to have broken the law by obeying his direct orders, then he also has the express power to pardon them.
I am not engaging in some wild thought experiment here. I am merely asserting that Trump-in-his-second-term will be no more of an institutionalist than Trump-in-his-first-term.
People will be murdered by the government for expressing opposition to the Trump regime. The murderers will not be prosecuted by the DOJ. (That would be a waste of resources, since they’d be pardoned anyway.)
The Court majority did not have to take this extraordinary step in order to protect Trump’s electoral efforts. As with Dobbs, it is an overreach. It is unstrategic. It may very well backfire.
What’s more, I do not think they invented this new precedent because they want American citizens to be murdered by the government for engaging in counterspeech.
They invented this startling new precedent because they just do not care.
They are extremist, partisan ideologues. And they refuse to be subtle about it.
One way or another, the composition of the Supreme Court is going to have to change. As a pragmatic matter, that is not easy to accomplish. It is unlikely that Biden (or Harris), even if re-elected, will have a larger Senate majority than they have right now. It is entirely possible that they might lose the Senate, even if re-elected. Without the Senate, you cannot pack the Court. Without the Senate, you cannot do much at all.
(And yes, I recognize the irony here. Technically Biden could order six members of the Court arrested and exile them to Mars or whatever. He’d be doing it in his official capacity, after all. But that’s the difference between the party trying to uphold a crumbling electoral democracy and the party that is ready to embrace autocracy.)
But the center obviously cannot hold any longer. The Court also struck down Chevron deference last week, effectively bringing the entire administrative state to an end. We will be unable to address the climate crisis and virtually everything else because six small-minded bigots with lifetime appointments believe whatever is most convenient for their wealthy benefactors today has been enshrined in the Constitution all along.
It is an inconvenient crisis, because there is no obvious remedy. The Roberts majority will clearly not be shamed into behaving with dignity. They cannot be directly voted out by the public. They answer, loosely, to the Senate. And the longstanding structural deficiencies of the Senate aren’t going to fix themselves either.
But that’s where we are. If Trump wins in November, his political opponents will be killed. If Biden wins in November, we’ll have a long, tough road to restoring order to the court.
All is not lost, but the stakes are existentially high.
I’ve been thinking recently about a line from Cory Doctorow (via Charlie Jane Anders): “Optimism is why the Titanic didn’t have enough lifeboats. Hope is why people kept swimming.”
The times we are living through do not call for optimism. I’d go so far as to say that anyone who is optimistic is in denial.
But they do call for hope. They demand it, in fact.
The Supreme Court majority are extremist, partisan ideologues. They refuse to be subtle about it. But there are only six of them. This is still a democracy. We outnumber them. And that still matters for something, at least.
I think it's really important to remember that the Supreme Court doesn't actually have statutory authority, they have reputational authority. It is likely the case that President Biden and Attorney General Merrick Garland continue to (wrongly imo) respect that authority but that's not a given for any future holder of those offices - Democrat or Republican. It's also not a given that state Attorneys General continue to respect that authority - arguably we have been in a nullification crisis since ~2009 and certainly 2011, with the united front of red state AGs consistently challenging every major piece of legislation passed by the Dem trifecta, and SCOTUS in the main allied. SCOTUS has not respected the *statutory* authority of Democratic Presidents or legislative acts for some time; future Democratic office-holders at both the Federal and state level will increasingly return the favor by not respecting its reputational authority, and thus not blessing it with statutory power.
Tl;dr Marbury v. Madison is bullshit and we should act like it.
I think things are going to be a good deal harder to fix than you describe. The Supreme Court is writing law and constitutional guarantees from the bench to benefit the GOP. They have shown there isn’t a limit to how far they’ll go to support Trump (this latest ruling, which is clearly the opposite of the explicit intent of the founders, is breathtakingly sweeping—it’s an *invitation* to Trump to crush his enemies). He’s the commander in chief. He has the military. It doesn’t matter if the Dems hang onto the House—how can they stop him?
But even Biden winning will only forestall the collapse into autocracy. The SC will clearly not let him govern. If the GOP takes back the Senate, it’s hard to see how they’ll let him seat a cabinet, what to speak of judges. Will the country ever pass another budget? This ruling was the beginning of the end for democracy. I can’t muster a single scenario, given the way the GOP has perverted the system in their favor, that the U.S. hangs onto a functioning constitutional democracy more than several years.