The turbo-reactionary Supreme Court majority has just burped out another instance of judicial rule-by-decree, and this time it’s a doozy. They have denied a stay on a ruling from a Trump-appointed lower court that would force the Biden administration to re-start its stay — saying that they did not accept the administration’s argument, but not explaining why, or what it might mean.
With the rest of the government hesitant to stand up to the courts, or just not functioning at all, judicial tyranny is flowing into the political void.
As Ian Milhiser argues at Vox, this decision is not only ridiculous on the legal merits, but also bigfoots into places where courts typically avoid treading for very good reasons:
It is not at all clear what the Biden administration is supposed to do in order to comply with the Court’s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations. [Vox]
Let’s not be children about what is going on here. There are a bunch of right-wing judicial clerics who hate immigration in general, and immigrants from non-white countries in particular, so they cooked up a B.S. “legal” pretext to force Biden to kick out as many of them as possible. It’s as simple as that.
A Democratic Party that took the problem of lawless courts seriously would be doing two things. First, President Biden would threaten to disregard decisions that are so wildly illogical or based on Fox News gobbledygook, or at least would treat them with the same contempt they have shown him.
There is actually precedent for this. The best president in American history, Franklin D. Roosevelt, famously proposed to add more seats to the Supreme Court when they wouldn’t stop overturning his New Deal policies. That was just part of a general suite of actions promising to fight the Great Depression (which was at its very worst when he took office, remember) even if that required asking “Congress for the one remaining instrument to meet the crisis — broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe,” as he said in his inaugural address.
Though the proposal to add more seats to the court did not pass, history textbooks ever since have still slammed FDR for his actions, viewing it as a highly inappropriate trespass on the rightful powers of the judiciary, if not the move of an incipient dictator.
But this is a crock. In the early 1930s, there was no separation of powers where three co-equal branches of government checked and balanced each other. Instead the judiciary ruled, dominating both the presidency and Congress. (Judicial review is not in the Constitution at all; it was made up by John Marshall.) From the 1870s through the 1920s, right-wing hack lawyers developed legal Calvinball re-interpretations of the Fourteenth Amendment — mean to protect the civil rights of freed slaves — as instead protecting corporations from regulations that might infringe on the power and profits of the capitalist class. Regulations mandating a 10-hour working day, banning child labor, or setting a minimum wage, and many more, were held to be the “legal equivalents of slavery,” as historian Richard White writes.
This cored out most of the democratic sovereignty of both states and the federal government, making state power something to be deployed only on behalf of ruthless corporations (like breaking strikes). Roosevelt’s threats were entirely legitimate and necessary to breathe some life back into American democracy and fight the Great Depression. He indeed pushed one justice into switching sides, thereby breaking the judicial-corporate tyranny and putting the court back where it belonged, at least for a time.
Many liberals seem very uncomfortable with the idea of the president or Congress standing up to the Supreme Court because it seems like an attack on the rule of law. But the truth is that we are already in that very situation. Right-wing hack lawyers are once again using legal Calvinball to legislate from the bench, using transparently fraudulent arguments or no arguments at all. It’s not respecting the rule of law to just let them do it.
In this case, the Supreme Court is cynically trying to put Biden into a political bind by forcing him into actions that will annoy the Democratic base and start a quarrel with Mexico. He would be entirely justified in refusing to obey unless the court gives him a clear argument about why it ruled as it did at the very least, if not declaring the entire farce too ridiculous and impractical to follow.
The second thing Democrats could do would be to pass legislation regularly and quickly. Conservative judicial rule-by-decree is powerfully enabled by how paralyzed Congress has become. With the filibuster requiring 60 votes for normal legislation, even when one party controls both Congress and the presidency simply keeping the government ticking over is a stiff task. Many of the court’s worst decisions are tendentious re-interpretations of legislation that could theoretically be redressed by passing new laws with clearer wording. That makes it seem like they aren’t treading on congressional authority, but they are just doing so while counting on Congress being too broken to pass new laws.
This problem would be quite a bit more difficult to solve. Right now the Democrats do control the House and the Senate, but rather than getting rid of the filibuster so they can pass legislation with their small majority, or adding new states to make it even remotely possible to hold on to the Senate, the party is currently in a pitched battle with its conservative faction, which is trying to take Biden’s agenda hostage to get tax cuts for the rich.
If they can’t get their act together, the legal principle of “If Democrats do it, that means it is unconstitutional” will more and more become the law of the land.