Democratic failure of imagination

July 15, 2025

On Monday, the Supreme Court radically expanded the power of the president and demoted Congress to the role of an advisory body. It did so in an unsigned order that lifted a stay prohibiting Trump from dismantling the Department of Education. The Court’s action was an insult to the American people and a grievous wound to the Constitution.

Democrats had the opportunity to prevent this result, but suffered from a lack of imagination. (I hate commentators who criticize “Democrats” as if the commentators are neutral observers with no stake in the outcome of our democracy. I am a Democrat. I include myself in the criticisms below.)

From January 2021 to January 2023, Democrats held a trifecta at the federal level. We knew the Supreme Court was a spring-loaded weapon pointed at the beating heart of democracy. In the fall of 2020, we watched as Republicans rushed through the nomination of Amy Coney Barrett on the eve of the election, ensuring the demise of Roe v. Wade.

After Barrett’s confirmation, we knew what was coming.

We knew how to stop it.

We had the means to stop it.

But we failed to act.

Well, that’s not entirely true. Joe Biden did what Democrats always do: He referred the issue of Supreme Court reform to a committee for study, hoping that nothing would happen. Biden’s plan worked perfectly.

The collective failure of imagination of Democrats to foresee the overruling of Roe v. Wade at the first opportunity, the grant of criminal immunity to the nation’s first convicted felon president, the tacit approval of kidnapping of immigrants and sending them to war-torn countries not their home, the injection of prayer into public schools, the erosion of voting rights, and the denial of the right of parents of transgender youth to make medical decisions about their children—and more.

We knew this was coming. We didn’t know the details, but we lacked the imagination to anticipate the worst.

We also lacked the boldness to respond to an unprecedented situation with unprecedented countermeasures. The Court’s “green light” allowing the president to dismantle an entire agency created by an act of Congress rewrites the Constitution.

Countermeasures like expanding the Court, restricting its appellate authority, and imposing a mandatory ethics code would have been modest in comparison to the threat. But apologists and institutionalists warned that we would “undermine the legitimacy” of the Court if we attempted to impose reforms.

“Undermine the legitimacy of the Court.” How quaint that concept seems only four short years later! It will take a century or more to recover the legitimacy and stature that has been squandered by the Roberts Court in service of the first president to attempt a coup.

My goal is not to chastise Democrats (including me) for failing to force our leaders to reform the Court when we had the chance. Rather, it is to say, “We must never again suffer from a lack of imagination or boldness in responding to unprecedented threats to the Constitution.”

At a time when democracy is under attack, appeals to “institutionalism” and non-existent bipartisanship are small doses of poison that slowly diminish our chances of success.

If we are branded as “leftists” or “radicals” or (gasp!) “progressives” for rising to the defense of the Constitution while others are complacent, we should accept those labels as a badge of honor—and tell our detractors and doubters to retire, get out of the way, or become part of the solution.

We can see what is coming next. We need not use our imaginations this time. Trump has told us. The only question is, “What are we going to do about it?”

Every Democratic member of Congress should be on the floor of their respective chambers tomorrow, decrying the Supreme Court’s abolition of the separation of powers between the president and Congress. Unless and until Democrats stage a legislative revolt, Congress is an appendage of the executive branch.

Unlike the newly demoted Congress, we have agency. We have power. We have multitudes. We have courage. We are the governed, whose consent is the basis of all government. And we are moving ever closer to withdrawing that consent—at the ballot box, at the cash register, online, in public transit, and employment.

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The details of the Court’s holding in the Department of Education Case

The Department of Education was created by an act of Congress in 1980. Trump campaigned on the promise of eliminating the Department of Education—something that could be accomplished only with the consent of Congress.

Knowing that Congress would never agree to abolish the Department, Trump signed an executive order that effectively ordered the dismantling of the Department of Education by mandating mass layoffs and distributing some of its functions to other agencies (including state agencies). The order required the Secretary of the Department of Education “to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education.”

The “Department of Education” would remain in name only—a Potemkin agency that would exist only to create the illusion of the Department of Education.

In May, US District Judge Myong Joun ruled that the order to “facilitate the closure” of the Department of Education was unconstitutional. See New York v. Linda McMahon | Order Granting Preliminary Injunction.

Judge Joun found that the executive order violated the separation of powers, writing in part:

The Executive Order’s direction to “facilitate the closure of the Department of Education and return authority over education to the States and location communities” goes directly against Congress’s intent in creating the Department . . . While it may be true that the President has the power to remove executive officers . . . . Defendants cite to no case that this power includes the power to dismantle Congressionally created departments and programs through mass terminations.

On Monday, in an unsigned order on its “shadow docket,” the Supreme Court lifted the preliminary injunction imposed by Judge Joun, thereby allowing the hollowing out of the Department of Education through mass layoffs, the closure of many programs and offices, and the transfer of functions to state agencies. See generally, Chris Geidner, Law Dork, The Roberts court allows Trump's gutting of the Education Dep't in a lawless ruling.

Justice Sotomayor dissented (with Kagan and Jackson joining). Justice Sotomayor wrote, in part,

Only Congress has the power to abolish the Department. The Executive’s task, by contrast, is to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3. Yet, by executive fiat, the President ordered the Secretary of Education to “take all necessary steps to facilitate the closure of the Department.”

Consistent with that Executive Order, Secretary Linda McMahon gutted the Department’s work force, firing over 50 percent of its staff overnight. In her own words, that mass termination served as “the first step on the road to a total shutdown” of the Department.

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.

The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.

As Steve Vladeck noted in his Substack essay, The Inconsistent Court Strikes Again, when the Supreme Court considered a challenge to President Biden’s authority to grant student loan forgiveness as being beyond his statutory authority, the Court left a stay in place for six months while it considered the case on the merits. Here, where the Court is faced with a similar argument—that Trump is exceeding his authority—the Court allows Trump to proceed to dismantle the Department of Education while the lower courts consider the challenges on the merits.

While it is possible to conjure explanations for the Court’s apparent inconsistent rulings, it is incumbent on the Court to explain itself, especially when the overwhelming inference is that the six Republican appointees on the Court will do whatever Trump asks them to do. See Ian Millhiser, Vox, The Supreme Court just handed Trump the biggest victory of his second term, in McMahon v. New York.

I have lost all faith in the Supreme Court. The only path forward is radical expansion of the Court to overwhelm the reactionary majority at the earliest possible moment. I suggest 27 justices (the size of the Ninth Circuit). There were six justices when the nation had four million citizens. The US population has grown by nearly a hundredfold since 1789, but the Court has grown by only three justices. Increasing the Court to 27 justices would be a fourfold increase—a modest expansion by any proportionate measure.

Many will object that “If we enlarge the Court, we will undermine its legitimacy.” Too late for that argument. See above.

And for those who say, “The Republicans will do the same thing if they get the chance,” I say that we must stop deciding what we will do to defend democracy based on fears of what Republicans might do in response. They are doing their worst as we sit on our hands. It is time to set aside the cheese plates and fight fire with fire. Preservation of our democracy demands that we be bold and imaginative in its defense. Let’s not let it down again.

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The Epstein Files and aid to Ukraine roil Trump's base

While we cannot rely on Republicans to defeat themselves, we should acknowledge that Trump's base is being roiled by multiple issues. We must be ready to exploit these issues, whenever possible. A well-placed protest sign with “Release Epstein’s Client List” could be enough to change the mind of a passing motorist.

In an action that seems to have come from an alternate universe, the GOP-controlled House Rules Committee rejected a Democratic request to release all of the so-called “Epstein files.” See MSNBC, Epstein files chaos: House Republicans spike Democrat's amendment calling for release of files.

Trump's MAGA base has been salivating over the release of the “Epstein files” for years. To have a Republican-controlled Committee in the House block the release will only heighten suspicion.

Fox News seems to be in “cover-up” mode, as well. According to mattgertz.bsky.social, Fox News mentioned Joe Biden’s name 85 times on Monday, but did not mention Epstein once.

While Trump may be able to control Fox News through his friend Rupert Murdoch, social media influencers and podcasters are not giving up. Trump may be able to slither out of this scandal as he has on dozens of other occasions, but it is undermining confidence in some of his most ardent supporters. Losing faith in Trump may not convert them into Democrats, but it may convince them to stay home in 2026.

Trump has also rattled his supporters by changing his position on sending weapons to Ukraine. See CNN, Trump announces novel plan to send weapons to Ukraine and gives Russia new deadline to make peace. (“The plan the president unveiled Monday . . . would see European nations purchase American weapons, then transfer them to Ukraine.”)

Trump campaigned on a promise of instant peace in Ukraine, and his decision to sell weapons to European allies for transfer to Ukraine has disillusioned his base. See Politico, ‘We’re not buying it’: Trump ties Ukraine aid to America First.

Per Politico,

But many in the MAGA movement remain wary and confused by how quickly the president went from berating Zelensky as ungrateful to holding the Ukrainians up as a model of courage.

“The European money mitigates it,” said one former Trump campaign official and longtime ally, granted anonymity to discuss internal conversations. “But we still hate it. This is not our war, and escalation isn’t in America’s interest.”

Steve Bannon, the former Trump senior adviser, blasted the announcement on his “War Room” podcast on Monday, suggesting that Zelensky’s “number one priority” was drawing Trump deeper into the conflict. "We’re about to arm people we have literally no control over,” Bannon said. "This is not [the] global war on terror. This is old-fashioned, grinding war in the bloodlands of Europe — and we’re being dragged into it.”

Trump has moderated his position on Ukraine after being played for a fool by Vladimir Putin, who sweet-talks Trump on the phone and then unleashes drone attacks on Kyiv hours later. See Fox News, Trump says US will send Patriot missiles to Ukraine, adds that Putin 'talks nice and then he bombs everybody'.

Again, we cannot assume that these friction points standing alone will make a difference. But as we continue the battle and focus on our challenges, it is helpful to recognize our opponents have their own issues—which we can and must exploit. While we don’t want to discourage Trump from supporting Ukraine, we can remind his supporters that he promised to end Russia’s war on Ukraine in 24 hours. See CNN, Fact check: It wasn’t ‘in jest.’ Here are 53 times Trump said he’d end Ukraine war within 24 hours or before taking office.

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Opportunities for Reader Engagement

A reader who leads a chapter of a national grassroots group highly recommends a program by Indivisible designed to train people in “strategic non-compliance” as a method of resisting MAGA’s authoritarian agenda. Click on the blue link below to sign up. All sessions will be recorded, so if you miss one, no worries! Catch up later.

Indivisible’s “One Million Rising”

Join our One Million Rising trainings, starting July 16, to learn our new strategy to do just that. Here’s how they will break down:

Session 1: The Moment and Your Mission
Wednesday, July 16 at 8pm ET/5pm PT

Get oriented to making meaning of this moment and the role you can play in coordinated strategic non-compliance.

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Wednesday, July 30 at 8pm ET/5pm PT

Learn not just our strategy, but how you can get others on board. In this session we'll prepare you to lead a conversation at a community gathering with folks in your life. That's how we get to one million people ready to take action.

Session 3: What Now?
Wednesday, August 13 at 8pm ET/5pm PT

You'll be onboarded to basic campaign design and learn how to implement it locally. We’ll also get you plugged into our next national campaign.

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Concluding Thoughts

At least once a day, I say something like, “How is this possible?” With each new “never-before-in-the-history-of-our nation” development, I shake my head and wonder how it can be that Trump seems to be getting away with behavior that is obviously corrupt, unlawful, anti-democratic, and likely illegal.

The answer is that he isn’t “getting away with it” in the sense that the majority of Americans understand what is going on. A series of polls released last week, most prominently a Gallup Poll, show that Trump is seriously “underwater” on an issue that helped fuel his election. See Maddow Blog | Latest polling suggests Trump’s political advantage on immigration is gone.

As noted in the Maddow Blog, there are many hopeful signs, including the sharp drop in approval of Trump's position on immigration among Latino voters. But more broadly, Trump's cruel approach to detaining and deporting productive, stable members of American society is helping people to see the benefits of immigration. Rather than viewing immigration as negative, an astounding 77% of Americans view immigration as a positive.

I cite the polls not to suggest that we “are winning” or “will win” on immigration in 2026. I cite the polls to validate our sense that there is something deeply disturbing about Trump's immigration policy. Our views are shared by tens of millions of Americans.

As Rod Serling would say, “There is nothing wrong with your television set.” As you and I shake our heads in disbelief each day, we are unknowingly engaging in a national communal ritual. Understanding that fact should lift us on days when the news seems unrelentingly bad.

Trump won a plurality of the votes cast in November 2024, and we haven’t had a chance to express ourselves at the ballot box since then (although special election results have been encouraging). But interim polling on favorability ratings is a data point that can help us calibrate our sense of what is happening in the national electorate.

So, if (like me) you are furious over the Supreme Court’s decision allowing the destruction of the Department of Education, we should take comfort in the evidence that Trump's actions are highly unpopular—a fact that will help us win in 2026. We can’t count on Republicans to defeat themselves, but we shouldn’t walk around with a cloud over our heads. We have reason to hope if we are willing to do the hard work necessary to convert opportunity into results.

We can do that. We have done it before, and we can do it again!

Talk to you tomorrow!

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