While my heart goes out to her, I feel oh so much worse for the American people. If the just-completed Supreme Court term is any indication, we are in for some very dark times ahead. The Court that for the first time in our history took away a constitutional right, tore down the barrier between church and state, put more guns on the street and closed its eyes to the existential threat of climate change, now wants to go even further down the road to right-wing bliss. Seemingly intent on deconstructing American democracy, the Court just signaled that it will hear a case next term that challenges state courts’ authority over elections. The plaintiffs, red state attorneys general, want to wrest this power away from the courts and give it to state legislatures instead. This way, they would be able to do what Trump attempted after the 2020 election and thwart the will of the people. Any election dispute, no matter how bogus or far-fetched, would be decided by legislators. They could use this power to send sham slates of electors to Congress instead of the ones chosen by voters. The radical right would thus be legally authorized to steal a presidential election.
There is nothing that the three remaining rational Supreme Court justices—Sotomayor, Kagan and Jackson—could do to prevent their autocracy-inclined colleagues from subverting the electoral process by which we choose presidents. The six hard-right Justices, consisting of two whose legitimacy is questionable given that their seats were stolen by Mitch McConnell, two others credibly accused of sexual harassment and assault, the always angry Samuel Alito, and a newly-neutered Chief Justice, will likely have their way, regardless of the popular will.
Only Congress can rein in an out-of-control Supreme Court. That would require a Democratic House majority and either at least 60 Democratic senators or a simple Democratic majority willing to suspend the filibuster in order to limit the Court’s appellate jurisdiction. Article III of the Constitution permits this. The time has come to get it done.
Absent congressional action to rein in the Court, the demolition of American democracy will continue.
July 8, 2022