The Supreme Court is now the enemy of American democracy
When retired Judge Stephen Breyer invoked Abraham Lincoln’s observation that the “popular government of the nation has often been called an experiment,” it could hardly escape him that the nation was recently, and for the first time since the civil war, subjected to an attempt to overthrow a democratically elected government by force.
Nor could it escape him that the Supreme Court – now under the firm control of a far-right supermajority – is embroiled in an increasingly brazen reactionary project.
In times of national division and conflict, the power of the Supreme Court is often magnified, leaving its members a choice to make. They can serve as a bulwark against extremism, as the Court did after World War II when it frustrated the efforts of white people in the Old Confederacy to preserve Jim Crow. Or they can foster division and conflict, as the Court did by issuing the Dr Scott decision in 1857, which incorporated the most radical positions of Southern slaveholders into the Constitution, including denying American citizenship to black Americans.
The current majority of the Court clearly takes the latter course, the one that can and has led America to civil war and other divisions in the past.
Republican-controlled states rush to pass restrictive abortion laws in anticipation of likely court gutting Roe vs. Wade[…]it would be the first time that he would put an end to the recognition of a fundamental constitutional right.
But, in a very real sense, the right to choose is already gone, as the right-wing majority in the Supreme Court allowed the Texas abortion law – which ended legal abortions in that state – to remain in place, despite its patent unconstitutionality under the still allegedly valid Roe precedent.
This action reflects the utter anarchy of a majority of the Court so eager to pursue an extreme public policy agenda that it is prepared to reject any pretense of judicial neutrality – and thus risk undermining the Court’s legitimacy for achieve its ideological and political goals.
This term alone, beyond the likely evisceration deerthe Court is set to issue rulings that could radically restrict states’ ability to regulate guns at a time of rising gun violence, gut clean air law, and limit the ability of colleges to consider race when making admissions decisions, undermining decades of progress in achieving diversity in higher education.
Few of these decisions are likely to be favored by the majority of Americans. For example, nearly 70% of the nation opposes the cancellation of deer. But the paralysis of Congress – compounded by the gerrymandering of House districts and the perpetuation of the filibuster in a Senate that already amplifies the power of right-wing voters of the center in small states – inevitably increases the power of the overwhelming majority. of the Court to impose its preferred policies on the nation, whether it pleases most of its citizens or not.
More recently, the majority of the Court attacked what Justice Samuel Alito – in a speech before the Federalist Society speech – decried as the dangerous growth of “more scientific” influence on public health during the pandemic.
During arguments over federal vaccines and testing mandates, Breyer repeatedly underscored a strong point: Thousands of people are dying every day from preventable deaths from COVID and rising vaccination rates will limit the toll, including in the workplace. Accordingly, by intervening to tie the hands of the government during a national emergency, the Court would literally lead to the deaths of thousands of Americans.
Yet the majority of the Court went ahead and did just that, striking down the workplace vaccination or testing rule imposed by the Occupational Safety and Health Administration, with the majority basing its ruling on the ridiculous proposition that because COVID-19 is transmitted outside of workplaces as well as within them, requiring employees to be vaccinated or tested is not workplace regulation. If this reasoning is generalized, it would nullify OSHA’s ability to regulate a wide range of risks and hazards that exist both inside and outside the workplace.
During his resignation appearance, Breyer cited the Gettysburg Address, which Lincoln gave in 1863, when the Civil War was at the beginning of its end. But Lincoln didn’t call the United States an “experiment” at Gettysburg. He did, however, in remarks he made before Congress on July 4, 1861, during his first year in office, as well as the first year of the war.
After describing the nation’s “popular government” as an initially successful “experiment,” Lincoln said a new challenge loomed for America: the “successful maintenance [of democracy] against a formidable internal overthrow attempt.
During his first inauguration a few months earlier, Lincoln clearly held the Supreme Court responsible for the threat to democracy, through his Dr Scott decision.
When the Court takes such a profoundly wrong turn, Lincoln warned, upon taking office, citizens cannot “practically resign their government into the hands of this eminent court.” Indeed, his continuation of the war effectively amounted to a rebuke of the Supreme Court’s attempt to use his position to instantiate slavery all over the land, an attempt that would materialize in the Emancipation Proclamation and eventual enactment of the Thirteenth Amendment.
Breyer did not join in Lincoln’s open rebuke to the Supreme Court; and as a member of the Court he might recoil hearing such an argument today. Yet, as Lincoln observed, when the Supreme Court becomes a partisan ally of the forces of reaction, as it did in the 19th century – and again in the 1930s, when a majority of the Court attempted to undo the New Deal – it falls to elected branch leaders to repel its excesses.
We are in another such moment today, as an extremist super majority of the Court’s justices are determined to use their claimed authority as arbiters of the Constitution to force an ideological and seriously reactionary overhaul of the nation. The responsibility we all bear, in Lincoln’s words, to uphold the “experiment” of “our people’s government” against efforts to “overthrow it” necessitates pushing back the GOP-installed majority from the Court.