“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price! You won't know what hit you if you go forward with these awful decisions.”
Thus Charles Schumer, senior senator from New York and possible new majority leader of the Senate, to be determined at a later date, speaking outside the Supreme Court building in Washington, DC, back in March, 2020, to my deep displeasure, “warning” Supreme Court justices Gorsuch and Kavanaugh not to vote the “wrong” way on June Medical Services L. L. C. v. Russo, a case arising from a Louisiana statute seeking to restrict the availability of abortions in that state, for all the world as though, if the good justices did vote the wrong way, he and few other senatorial plug-uglies would take the two out into the Supreme Court parking lot and administer a severe beatdown.
Fortunately, that did not come to pass. Chief Justice John Roberts, punctiliously following a precedent that he personally disagreed with, voted with the Court “liberals” to overturn the Louisiana law (decision here). But the recent appointment of yet another “Trump justice”, Amy Coney Barrett, has added roughly 70 tons of fat to the fire, and if the Democrats win a majority in the Senate—something that probably won’t be nailed down for a few weeks (and if it only takes that long, well, we should be so lucky)—that fat will be a-crackling.
Well, assuming a Democratic win, which, in my compulsively nervous state I would describe as “semi-likely”, what should be done? I am very much not a fan of court-packing, but my answer is definitely “not nothing”. First of all, the filibuster should be discarded, once and for all. It is a relic of the “old Senate”, in which each senator was source of independent power, and each had to be coddled and persuaded in order to let business go forward. This in turn was due, in large part, to the “bipartisan” nature of American politics, itself largely a product of the Civil War. (Yes, this does go back a ways.) The Democratic Party, as it took shape during the Gilded Age, was a bizarre alliance between southern reactionaries and Irish immigrants, a creature with two heads that somehow lived for over a century. The Republicans eventually acquired a similar divide, Main Street versus Wall Street, as western farmers had no inclination to make peace with the “rebels” in the south but still smarted from the banker-friendly policies of the big shots back east.
The Democratic embrace of the civil rights movement in the sixties set in motion a realignment that squeezed the conservatives out of the Democratic Party and the liberals out of the Republicans. The Reagan Administration began the process of cutting down on “senatorial prerogative” to gain control over the U.S. court system. I suspect that Democratic Senate leader Harry Reid, who entered the Senate in 1987, leaving in 2017, and Mitch McConnell, who entered in 1984, allowed the filibuster to flourish and become part of the Senate’s daily operation, as it never had before, as a last attempt to maintain the traditional way of doing business. Both men were, by their own parties’ standards, “moderates”, and they had arrived in the Senate in the “old Senate’s” last days.
But in fact the filibuster should have been abolished in Obama’s first term. Unfortunately, I believe that Obama had “promised” the Wall Street billionaires that he would “cooperate” with Republicans, which simply gave the Republicans, who loathed and despised Obama and were willing to destroy the country in order to destroy him, veto power over his administration. The Democrats should have abolished the filibuster and the Republicans be damned. There is no reason why the Senate should not be as partisan as the House. The staggered election cycle, which the sacred founders created as a temporary check on the “passions” of the people, is more than sufficient. In other major countries, like the U.K, France, and Germany, a decisive win at the polls is decisive: the winners rule. We alone have two houses with equal power—the Senate, of course, has greater power—elected on different schedules that provide an automatic “check” on “passion”.
Okay, that was a bit of a detour, wasn’t it? But I’m coming to my larger point now: since Congress needs to be reshaped in light of the partisan age we live in, what about the courts? Should they be reshaped as well?
Well, the courts themselves shouldn’t. Matt Ford, writing in the New Republic, has a nice article, “The Deradicalization of Supreme Court Reform” arguing against the idea. My own idea is that packing the Court “effectively” would, first of all, infuriate the Republicans currently on the Court, not to mention all those at the district and appellate levels, and, secondly, destroy the Court’s prestige. But the Constitution specifically gives Congress the power to “regulate” the Court’s appellate jurisdiction: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (Article III, Section 2)
If the Democrats win the presidency and a majority in both houses, they should exercise this power. They should do so in order to allow public policy to be made by legislatures rather than courts. In my recent post on Ruth Bader Ginsberg, I argued that the Court had been too aggressive in deciding public policy issues like abortion and gay marriage (the chief complaint of “real liberals”, of course, is that it isn’t aggressive enough). Furthermore, there is no question but the Republican Court, at least since the 2000 presidential election, has been blatantly partisan in deciding any and all cases affecting the political process in favor of the “Republican” position. It is time to regulate the Court’s authority. Americans, both liberal and conservative, take the Court too seriously, and the Constitution as well. Let’s not forget that our “wonderful” constitution created a government that fell to pieces only 72 years after its creation, when southerners decided that they didn’t like the democratic process when they didn’t win. The founders were quite as fallible as us, and they’re dead and we aren’t, and we have to live in the real world, while they don’t. The constitution should be considered as a general guide for action rather than an infallible source of wisdom that solves all our problems for us when interpreted “correctly”. We should abandon the myth that all our policy beliefs are enshrined in a constitution written more than 200 years, a myth that conveniently allows five geezers in black robes to impose their wisdom on a nation of more than 300 million. There was a time when “conservatives” argued this way, back in the Reagan Administration, when they were confident that they could win elections. Now that they can’t, they’ve changed their tune. Us liberals should not join them in their hypocrisy. Instead, we should put an end to an unrestrained Supreme Court and reassert the power of Congress. The times they are a’ changing, to coin a phrase, and the powers of the Supreme Court need to be changed as well. It’s time for a trim!
