Members Only | December 15, 2022 | Reading Time: 6 minutes
The only counterweight to the Six is enduring control of Congress by the Democrats
Court-packing is nice but democratic politics is better.
Amid reports about Justice Samuel Alito possibly leaking Supreme Court opinions to anti-abortion allies, and about Justice Brett Kavanaugh possibly beer ponging with rightwing militants, both of which have raised serious questions about the integrity of the court, lurks this fact: the checks and balances America is renowned for are out of whack.
There are reasons, good and bad, for the imbalance of the federal government’s three branches. The main one, however, is well known.
Mitch McConnell, who was at the time Senate majority leader, interfered with the normal process of judicial selection long enough for Russian saboteurs to act. They softened 89,000 American brains with their own pride and prejudice to allow Donald Trump to win in 2016.
The result is the Six, a rightwing supermajority on the high court.
It may not be apparent, but the Six do have a coherent objective – to return legal and constitutional authority to the states, so that states aligned ideologically can bend the fate of America according to their whims and interests. There is no higher goal. Where there once was a settled United States, there’s a restoration of these United States.
It’s a restoration because state-oriented power had been taken away, step by step during the 20th century, by the court itself and by the Congress – think Brown v. the Board of Education, the Civil Rights Act, the Voting Rights Act and Roe, among other landmark events.
These laws and court precedents knitted our continental federation together in ways it had never been. Over time, someone in Nebraska had (in theory) the same rights, privileges and entitlements as someone in Connecticut. That was new. That was part of a postwar consensus in which most people approved, at least tacitly, of unifying the country according to the individual liberties afforded by the Bill of Rights.
Where there once were state governments entitled to regulate, say, pornography, there was in time federal protection of the First Amendment against states bent on infringing free speech rights.
The result was a reactionary politics in retreat.
Before the early 1960s, rightwingers like Bill Buckley and the editors of National Review defended Jim Crow apartheid as well as other “traditional” orders of power privileging the white patriarchy. Afterward, most stopped. Only extremists like Robert Welch kept beating that drum. The rest regrouped under the banner of state’s rights and what scholar Bryan Santin calls “colorblind individualism.”
Where there once were state governments immune to the Bill of Rights, there were by the 1960s state governments constrained by it. To prevent further constraint, rightwingers declared states victims of “big government,” “government tyranny” or even “totalitarianism.” Meanwhile, they found alternative means of maintaining the old white-power status quo while pretending to do no such thing.
You may have noticed the rightwingers aren’t pretending anymore. You may have really noticed after the Supreme Court cut down Roe.
The Six broke the seal with that one.
They are gaining momentum.
The court heard two cases last week that again seek to restore legal and constitutional authority to states aligned ideologically for the purpose of oppressing residents and dominating America’s future.
The first is 303 Creative in which a web designer sought the court’s blessing in refusing to take on LGBT-plus clients. Basically, her argument is that LGBT-plus-ness is against her religion so she deserves federal protection of her right to religious liberty.
Yes, that logic can be applied to virtually everything, especially to stigma baked into the American psyche. If the court rules favorably, it won’t be long before Black people – or anyone carrying the burdens of white power – are denied virtually everything. Accommodating them would be against the genuine faith of someone somewhere.
Alito seems to think I’m exaggerating. He “suggested that those kinds of animosity have nothing in common with the ‘honorable’ views of religious people who oppose same-sex marriage,” per The Economist.
In every case “in the last decade involving religious resistance to an equality norm, equality has lost,” Louise Melling wrote in the Boston Review. “The implications, for our civil rights laws and those they aim to protect, are grave. These cases are about nothing less than whether the Constitution protects the right to discriminate.”
The second is Moore. That’s the potentially devastating case featuring the so-called “independent state legislature” theory, according to which state legislatures can ignore their own state constitutions when specifying the “times, places and manner of holding elections.”
The theory says legislatures can overrule the will of voters, pretty much upending the point of representative government. Instead, they can assign electors for whichever presidential candidate they like. Had this anti-democratic theory been in effect in 2020, legislatures in Georgia, Pennsylvania and Arizona would have reelected Donald Trump.
The Economist said Alito and Justices Clarence Thomas and Neil Gorsuch “warmly received the North Carolina lawmakers’ claim” while reserving a measure of doubt about the minds of Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh.
There should be no doubt, however, especially about Kavanaugh who in 2000, as an attorney on Governor George W. Bush’s legal team, advocated for the “independent state legislature” theory in the hopes that it would result in his client’s victory over Vice President Al Gore.
The Six have unbalanced the Supreme Court, which in turn has unbalanced the United States government. All things being equal, the court could in time permit GOP cartels known as state legislatures to nullify democratic outcomes. The whole thing needs rebalancing.
Alas, it won’t be by means proposed, such as setting term limits or packing the court. I think these thresholds cost too much politically, even for politicians who see the need for reform. Our limited time, energy and resources should be focused on something else, which is to say, the only viable way to rebalance the federal government.
That counterweight? A Democratic Congress.
Only a Democratic Congress can restore balance.
Not only does the first branch of government write federal law. It represents, collectively, the sum total of all the beneficiaries of American self-government. Alito, Thomas and others may believe they can do as they wish. But let’s see what happens when the court goes head-to-head with the collective will of the American people. (The GOP has the House next month, but my point is about the long term.)
Controlling the Congress for years may sound unlikely, but it’s been done. For most of the 20th century, the Democrats dominated, especially in the House. They were the party of the people. The Republicans were the party of wealth and property. The GOP wedged that bloc by pretending, among other things, to care about court precedents and “colorblind individualism.” They don’t anymore.
And the Democrats are showing already how to restore balance.
They passed, and the president signed into law this week, the bipartisan Respect for Marriage Act, a measure that got out in front of the Supreme Court’s anticipated knock down of same-sex (and interracial) marriage rights established by Obergefell in 2015. The law requires the states to recognize the marriage laws of other states. (It also repeals the old Defense of Marriage Act’s gay-hating provisions.)
It’s not perfect. It does not require states to issue marriage licenses, as Obergefell does. It also ensures that some “nonprofit religious organizations” are not, said Slate’s legal correspondent Mark Joseph Stern, “compelled, under federal law, to provide goods, services, or facilities ‘for the solemnization or celebration of a marriage.’”
US Senator Dan Sullivan, of Alaska, went much farther to say it’s “more about promoting and expanding religious liberty protections than same-sex marriage.” It “has the strongest religious liberty protections for religious organizations that believe in traditional marriage,” he said.
Point is the law seems written with the Six in mind.
It does not require licensing, Stern said, because federal provisions that “commandeer” states to act would almost certainly be struck down by the Six. Instead, Stern said, the law uses the US Constitution’s full, faith and credit clause to force one state to recognize same-sex marriage laws of other states. That way, a same-sex couple married in Massachusetts won’t break the law after moving to Florida.
That, Stern said, is on solid constitutional grounds.
An even larger point, I think, is less about the legislation itself, which would go into effect only if and when the Supreme Court overrules Obergefell, than about a Democratic Congress taking preemptive action against it. The New Yorker’s Jeannie Suk Gersen had it right:
Perhaps what is really to be celebrated is Congress managing to pass any law protecting same-sex marriage, even partially. And it is a hopeful sign of more health than dysfunction in our system of government that members of Congress were able to act on their constituents’ disapproval of the Court’s anticipated direction and pass a law addressing it.
The reasons reformers want to pack or limit the court are good and obvious. But good and obvious do not translate easily into politics.
The better course is declaring a court gone rogue.
And putting the first branch in Democratic hands for years.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.