The Supreme Court is an Illigitimate Institution

This week, the highest court in the land issued a series of rulings that will have devastating consequences for human rights. And they’re only just getting started. In just the past seven days, the court has ruled that states are required to fund private religious schools, police cannot be sued for neglecting to read you your Miranda rights, states do not need to provide medical care that could exonerate prisoners, states are no longer allowed to limit concealed carry, and abortion is no longer a constitutionally protected human right.

In today’s majority opinion, Justice Thomas, a man who has been credibly accused of sexual harassment, indicated that he believes the court should also reverse marriage equality, same-sex relations, and access to contraception. This is the same Supreme Court justice whose wife was complicit in the January 6th insurrection. It is repugnant that these are the people who have such absolute power. And it is absolute. Supreme Court justices are appointed, not elected, and must be confirmed by a majority in the Senate, a body that disproportionately favors white conservatives. They don’t have term limits or age limits, and it is extremely difficult to impeach and remove them. We have virtually no means of holding them accountable for their decisions.

For the past decade and a half, we’ve seen this court make decisions that are radically out of step with mainstream American political consciousness and often under the cover of dark money. In 2008, the Supreme Court redefined the 2nd amendment to explicitly guarantee individuals rights to own firearms, a right that had not been recognized throughout our history. However, the gun lobby exerted their influence and got their desired result. Shortly thereafter, handgun sales went through the roof. In 2010, the Supreme Court ruled that Congress could not limit the amount of money corporations and organizations spent in campaign contributions. This decision came after the plaintiffs, a shadow front group for the Koch brothers’ operations, invited Justices Thomas and Scalia to speak at expensive retreats.

When it comes to our judiciary, corruption is the name of the game.

It gets worse.

Despite the fact that the Republican Party has only won the popular vote ONCE in the last 34 years, 6 of the 9 justices have been appointed by Republican presidents, 2 of whom have been credibly accused of sexual harassment, sexual assault, and attempted rape. They stole a seat from President Obama in 2016 claiming an absurd precedent that there shouldn’t be any Supreme Court nominations in an election year, despite the fact that the election was 9 months away at the time. Then, when Justice Ginsberg died just weeks before from the 2020 election, they threw out that precedent and rammed through Justice Barrett’s confirmation. Our judicial system is rigged against Democrats.

We can no longer pretend that members of the judicial branch are apolitical actors calling balls and strikes as they see them. That’s simply not the case. The conservative 6 on the Supreme Court are partisan Republican actors hell-bent on using the illusion of norms and balance to enact their extremist agenda. They are rolling back voting rights. They’re dismantling bodily autonomy. They’re preparing to go after LGBTQ folks. They’ve already dismantled workers’ rights. Assuming that our institutions will fix themselves allows cynical actors to exploit us. And what are Democrats in Congress doing? For the most part, they’re bringing knives to a gunfight. And not even sharp ones. I’m talking butter knives to AR-15s. That’s why we’re losing and losing badly. These decisions harm all of us, but let’s be clear. When America gets a cold, Black and Indigenous people of color get hospitalized. Wealthy white woman will always find a way to get an abortion. We need a strong Democratic party that will stand up for Black women, for trans people, for immigrants, for everyone that’s been taking a beating from this court. We need a Democratic Party with a plan to fight back and secure our most basic civil and human rights.

Here’s what that means:

Tackling abortion access is a morally righteous fight, and there’s a lot President Biden can do without Congress. Senator Warren along with 20 other Democratic senators issued recommendations including providing universal access to the abortion pill through the postal system, providing resources for people that need to cross state lines to get an abortion, and using federal property to increase access to abortion. These recommendations would have a transformative impact at individuals who need abortions but live in one of the 13 states in which abortion has been banned. Of course, Congress can still still take action. The House has already passed the Women’s Health Protection Act which codifies Roe into law, however the senate is refusing to act, mainly because Senator Manchin and Senator Sinema refuse to alter the filibuster which requires 60 votes rather than a simple majority. Fake Democrats like Manchin and Sinema have effectively held hostage every major attempt President Biden and Democrats have made to pass their agenda over the past 17 months. Personally, I’d like to see the President shame them publicly and call on the DSCC to withhold campaign funds from them until they get their heads out of their butts. We’ve been shouting at them and tweeting at them, but it’s hard to hear the people’s voices when your ears are stuffed with corporate cash.

Beyond executive and congressional action to secure abortion access, we still need to solve the underlying issue: the courts. Democratic chairman of the House Judiciary Committee Jerry Nadler introduced the Judiciary Act to add four seats to the Supreme Court. Expanding the bench is common sense policy. Throughout our history, we’ve altered the size of the bench many times. Right now, there are 13 appellate courts, yet the Supreme Court only has 9. One reform being floated would have justices rotate from lower courts. However, this wouldn’t be as effective, at least by itself, in balancing out the voices of right-wing extremists up and down the bench. A more aggressive strategy to combat our right-wing judiciary would be to decrease its ability to rule on cases with such deep societal impacts by jurisdiction stripping. In many of our peer nations, judiciaries exist in a much more limited capacity. Why should unelected bureaucrats with lifetime tenure have the ability to run rough-shot over our democracy? We don’t have to wait for Congress to pass a law. I am happy to see some elected officials already professing that they will disregard Supreme Court rulings. New York AG Tish James announced that her office will be disregarding yesterday’s gun decision and will continue to require permits for concealed carry. We should demand our elected officials and those currently seeking office to commit to disregarding Supreme Court decisions that the majority of this country disagrees with. That means electing state AGs and district attorneys that will refuse to prosecute abortion cases.

I’m asking you to join this fight with both feet. We desperately need ordinary people to stand up against this onslaught on our civil rights. The party establishment is failing to meet the moment. Shoot, the entire Democratic leadership including Speaker Pelosi intervened in a primary in South Texas in favor of Henry Cueller, the last vehemently anti-choice Democrat in the House, against Jessica Cisneros, a young progressive women of color who would have fought for abortion rights. We can’t rely on the septuagenarians and octogenarians leading the Democratic Party to fight for us.

Here’s what we can do. We can shame Democratic elected officials and exert public pressure to demand they support aggressive policies like jurisdiction stripping and court expansion. We can donate to abortion funds and even serve as escorts. We can support pro-choice, progressives in Democratic primaries. And we can organize our communities to vote in local and state elections where many of these critical civil rights decisions are being decided. Voting is important, paramount even, but by itself, it’s insufficient. It’s all hands on deck to restore abortion rights, protect and secure all of our basic civil and human rights, and to restore our democracy.

--

--

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store