The Rogue Court vs Modern Democracy
America can accept this Supreme Court as legitimate and its rulings as the final word - or it can have true democracy and a functioning state. But not both.
It was a disastrous week for all those who would prefer to live in a multiracial, pluralistic democracy with a functional government able to handle the challenges of modern life.
After some better-than-expected rulings that reignited talk of a “moderate” conservative Court exercising restraint, the reactionary majority left the worst for last. The Supreme Court ended its term with a flurry of decisions that thoroughly undermine the drive towards egalitarian democracy and the ability of the state to tackle the most urgent collective actions problems of the twenty-first century.
The (stupid) legend of the 3-3-3 Court
It’s worth reflecting a little bit on the trajectory of this 6-3 Court. Two years ago, it ended the 2021 term – the first in the current constellation with six rightwing judges, after Amy Coney Barrett had succeeded Ruth Bader Ginsburg in October 2020 – with noticeable restraint: no earth-shaking decisions, no attempts to unravel the “liberal” status quo. Had the fear of the new conservative supermajority on the High Court been overblown?
For most serious observers, the obvious explanation for how the Court conducted itself in 2021 was that the rightwing majority, faced with a riled-up public, acted cautiously for tactical reasons. Remember that the 6-3 constellation was the result of several questionable – to use a wonderfully euphemistic term – actions by Republicans. After the death of Ruth Bader Ginsburg in September 2020, Republicans insisted on putting Amy Coney Barrett on the Court in record time – even though there were less than 40 days between her nomination and the presidential election in early November. This was a remarkable move, considering that Republicans had refused to even hold hearings for Merrick Garland, who president Obama had nominated in March 2016 to succeed Antonin Scalia. Such a far-reaching decision, Mitch McConnell – ever the tribune of the people! – argued at the time, should not be made in an election year and should instead be left to the next president. After blocking the process for almost a year, Republicans ultimately got Trump to the White House, who immediately nominated Neil Gorsuch. But two years later, in the fall of 2020, Republicans were entirely comfortable to ignore their own bad-faith rational for why they sabotaged Barrack Obama’s pick. It must be considered the least surprising development in recent political history In-between Gorsuch and Coney Barrett, they had already insisted on placing Brett Kavanaugh on the Court in 2018: a man credibly accused of sexual assault, which only strengthened the resolve of Republican lawmakers – upstanding Christian patriots and defenders of family values, all of them – to close ranks behind him.
Gorsuch, Kavanaugh, Barrett – all three of them hand-picked by the Federalist Society, of course, to insure their impeccable “conservative” credentials, meaning they are reactionaries who can be relied upon to drag the Court significantly to the Right. All three nominated by a president who had lost the popular vote – and after January 6, 2021, by a president who had attempted a self-coup that would have ended democracy and constitutional government in the United States.
So stark, so crass, so bizarre was the discrepancy between the pretensions of democracy and the reality of minority dominance, between the norms of the political process and a reality in which Republicans displayed zero interest in forbearance, between the ideal of nonpartisanship the Court always claims for itself and the reality of a brutal rightwing power grab, that for a while, even the Democratic establishment seemed to agree that something had to change. Court reform, expanding the Court, restricting judicial review… the contours of what, exactly, should be done remained fuzzy. But it was enough to put some pressure on the Court’s conservative majority: A credible threat – and a big part of why the 2021 term ended in restraint. The Right had decided it was better to keep a low profile, avoid attracting more criticism, let the storm pass.
And it totally worked. As the full-on assault on fundamental rights and democracy failed to materialize in 2021, mainstream Court coverage quickly reverted back to its idolizing mean and enthusiastically told the people about the most wondrous, most marvelous of creatures: the 3-3-3 Court. A rightwing supermajority? No! Three “conservatives” (Thomas, Alito, and Gorsuch) on the right, three “liberals” (Sotomayor, Kagan, Breyer) on the left – and the most revered figure in American mainstream imagination, the “moderate institutionalist” represented three times (Roberts, Barrett, and Kavanaugh) in the middle. The mythical center was holding after all. It never made any sense, beyond the most superficial layer of pseudo-analysis.
But there is a professional machine of Court observers always ready to propagate the legend of the noble, nonpartisan Court, all balls and strikes. The “3-3-3 Court” narrative embodied all the pathologies of the hagiographic mainstream Supreme Court discourse, propelled by journalists whose professional standing depends on access as much as it does on the reputation of the institution which they are supposedly tasked to cover critically, and by legal experts who often have a vested interest not just in making their profession look good in general, but also in building rather than burning bridges to the all-powerful justices on the nation’s highest court.
