The walls of liberty.
[No audio version today due to travel.]
Last week’s rulings from the Supreme Court continue to lead the news as the nation celebrates the 4th of July holiday. The Washington Post’s headline reads Biden faces renewed pressure to embrace Supreme Court overhaul. The details matter less than the fact that the notion of Supreme Court reform is the top story on a day when the Court issued no opinions. And the Supreme Court is top of mind for many readers, many of whom recommended articles and action items for other readers in yesterday’s Comment section. Chief among those recommendations was Rebecca Solnit’s exhortation in The Guardian, The US supreme court has dismantled our rights but we still believe in them. Now we must fight.
Solnit is a gifted writer who hit the mark in capturing the feelings of millions of Americans. She first addresses the feelings of anger and frustration about a Court that is out of control:
The first thing to remember about the damage done by the US supreme court this June and the June before is that each majority decision overturns a right that we had won. [¶]
Each of those victories was hard-won, often by people who began when the rights and protections they sought seemed inconceivable, then unlikely, then remote, and so goes the road of profound change almost every time. [¶]
To recognize the power of this change requires a historical memory. . . . Memory is a superpower, because memory of how these situations changed is a memory of our victories and our power. Each of these victories happened both through the specifics of campaigns to change legislation but also through changing the public imagination. The supreme court can dismantle the legislation but they cannot touch the beliefs and values.
In words that I wish I had written, Solnit urges us to action:
[H]istory shows us that when we come together with ferocious commitment to a shared goal we can be more powerful than institutions and governments. The right would like us to feel defeated and powerless. We can feel devastated and still feel powerful or find our power. This is not a time to quit. It’s a time to fight.
Other readers shared Jennifer Rubin’s op-ed in The Washington Post, Self-government is worth defending from an illegitimate Supreme Court.
On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable.
On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable.
Rubin identifies the many ways in which the Court has strayed from its legitimate role as a judicial body (familiar ground for readers of this newsletter) but highlights the particularly destructive role of the “Major Questions Doctrine.” That judge-made doctrine arrogates to the Court the right to overturn any decision by a federal agency with which the reactionary majority disagrees. The pseudo-rationale for the doctrine is that if Congress intends to delegate discretion to federal agencies on “major questions,” it should use a level of specificity that is to the liking of the Supreme Court.
Says who?
The doctrine was invented from whole cloth to justify judicial activism in service of an anti-government agenda. As Jennifer Rubin writes,
The mumbo-jumbo “major questions doctrine” is not the stuff of judging. No wonder the chief justice got touchy when Kagan pointed out that the court “is supposed to stick to its business — to decide only cases and controversies and to stay away from making this Nation’s policy about subjects like student-loan relief.”
Ian Millhiser explains the Major Questions Doctrine in detail in his article in Vox, entitled, The Supreme Court’s student loan decision in Biden v. Nebraska is lawless and completely partisan. Millhiser does not mince words:
Let’s not beat around the bush. The Supreme Court’s decision in Biden v. Nebraska, the one canceling President Joe Biden’s student loan forgiveness program, is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as “major questions” which has no basis in any law or any provision of the Constitution.
Roberts’s opinion in Nebraska effectively overrules the decision of both elected branches of government. It overrides Congress’s unambiguous decision to give this power to the secretary of Education. And it overrules the executive branch’s judgment about how to exercise the authority that Congress gave it. As Kagan writes in dissent, “the Secretary did only what Congress had told him he could.”
Like Rebecca Solnit, Jennifer Rubin ends her op-ed on a note of optimism and determination to right the wrongs of the Court:
On this Independence Day, which celebrates rebellion against a monarch lacking consent of the governed, it behooves us to dedicate ourselves to robust and authentic democracy: government of the people, by the people, for the people — not by arrogant right-wing justices.
On this Independence Day, it is also worth reflecting on how little the size of the Court has changed since the adoption of the Constitution in 1789. At that time, a Supreme Court of six justices served a nation of 13 states with 4 million inhabitants. If the Supreme Court had grown on a basis proportional to the number of states (from 13 to 50), the Court would be 23 justices today. If the Court had grown on a basis proportional to the increase in population (from 4 million to 330 million) the Court would be 489 justices today. (Check my math here: Percentage Increase Calculator.)
Other comparators could be used to estimate the appropriate increase in the size of the Court: increase in GDP, increase in the number of petitions for review in 1789 vs. 2023, increase in the number of lawsuits filed annually in 1789 vs. 2023, or increase in the number of laws and regulations on the books in 1789 vs. 2023.
Obviously, increasing the Court’s size from 9 to 489 justices is ludicrous. But increasing the Court from 9 to 13 justices (as many suggest) ignores the tremendous growth of the nation—and the need for a substantially larger Court. The workload of the Court does not increase in relation to the number of states, but to the populations in those states, the economic activity in those states, the number of lawsuits filed by the residents of those states, and the number of laws and regulations that must be interpreted.
Without regard to any of the present controversies surrounding the Court, substantially increasing the Court’s size is a reasonable proposition. But considering the Court’s descent into illegitimacy and usurpation of legislative power, increasing its size substantially is an easy call: We must do it to overcome the reactionary majority. We have no other choice.
Enlarging the Court requires only a majority vote in both chambers of Congress, while virtually every other structural reform would require a constitutional amendment—a 2/3rds approval in both chambers of Congress and ratification by 3/4ths of the states. That will never happen. (If you propose imposing 18-year term limits, I urge you to read the plain words of the Constitution: Article III Section 1 | U.S. Constitution.)
Urgency is required. As reader John C. posted in response to my 4th of July newsletter,
I agree that the long term looks promising, but many people cannot wait for the long term. Women who want abortions, victims of gun violence, refugees, same-sex couples who want goods or services, students who are barred from colleges, and so forth are suffering now and lack the luxury of waiting.
We can work our way out of this daunting situation in the short term at the ballot box—by retaking the House and defending the Senate in 2024. And then demand boldness from our leaders. While they have temporized and appointed commissions and fretted about the “legitimacy” of an enlarged Court, tens of millions of Americans have been injured by a rogue Court that abandoned the rule of law and adopted the agenda of religious nationalism. The solution is staring us in the face and is within our grasp. Let’s take it!
In the words of Rebecca Solnit, “This is not a time to quit. It’s a time to fight.”
And if you are looking for guidance on where and how to direct your fighting spirit, there is no better place to look than Jessica Craven’s Chop Wood Carry Water on Substack. Her post on the 4th of July is filled with action steps you can take, including word scripts for calling your elected officials in Washington, D.C., and important organizing / fundraising events, such as:
An event on Wednesday, July 5th at 5:30 PM Eastern with Senator Sherrod Brown and Ohio Democratic Party Chairwoman Liz Walters about how you can help get out the “NO” vote in the Ohio special election set for August 8th. Register here.
A Force Multiplier event with Senators John Tester and Raphael Warnock on Monday, July 10, 7:00 PM Eastern. The event will help build grass roots support for Senator Tester in what is expected to be a hard-fought campaign. Register and donate here.
While you are at it, sign up for Jessica Craven’s Chop Wood, Carry Water for the latest on daily actions you can take to help defend democracy!
Concluding Thoughts.
We are about to end our brief holiday in the Berkshire region of Massachusetts. As a California native raised in the desert that is the San Fernando Valley, I have been struck by the sense of place and history that is everywhere in a countryside settled before the founding of the United States. A simple example is the low stone walls that seem to be alongside every road we traveled. When the early settlers cleared the land for grazing and farming, the stones were obstacles to be moved. But nothing was wasted, and the stones were repurposed into walls to keep cattle and sheep from wandering and to mark boundaries separating neighbors and crops.
Low stone walls that were built three centuries ago still mark the landscape today. Indeed, they define it. The walls initially set the natural course for footpaths but soon evolved into the markers for horse trails, wagon ruts, country lanes, dirt roads, and (eventually) state highways. As we glided along the highway in our electric vehicle over the holiday weekend, we were unconsciously following the paths set by farmers who moved and stacked rocks by hand to create a clearing for an emerging nation.
In the same way, we are unconsciously following the paths defined by founders and framers, citizens and soldiers, immigrants and indigenous peoples, and Americans enslaved and free. Our struggles may seem new, but they follow ground that is well-trod, shaped by the efforts of those who came before us. It is worth a moment of reflection to recall that we have inherited a nation that has been shaped by the sweat and toil of generations before us. As we fight to reclaim the rights lost over the last year, we should recognize that are not starting from scratch. The land has been cleared, and the walls of liberty have been built and are still standing. We need only find and reinforce them for the next generation.
Talk to you tomorrow!
This weekend I mustered my courage and read the Opinion of our esteemed SCOTUS in the Students for Fair Admissions case. In my forty years of practicing law in California, I have gotten good at seeing how Supreme Courts (state and federal) go about justifying their opinions, and this one is no surprise. The six of them were obviously salivating at the opportunity to be done with affirmative efforts to level a discriminatory playing field that has held minority people back from positions of influence in the professional ranks of our society. They latched onto language from the splintered Bakke decision, and others that followed, that expressed concern about the “ending date” of college admissions that would seek to correct a longstanding wrong that has left people of any color besides white (or sex besides male) behind the eight-ball. From there, it was easy-going for them to conclude that enough time has passed for that disagreeable thing to be fixed. From their vantage point, as white-skinned observers of a country controlled by white men (yes, I put Clarence Thomas in that category, for whatever mentally unbalanced reasons are true), people of color have had enough advantage on the backs of the “majority,” who have patiently shared their bounty with the losers of well-documented battles for control of the wealth of this land. After all, where is the gratefulness for the opportunities given to people of color for the food and clothing they were allowed to have after they were forced to enrich the lives of white people?
Enough is enough, so our SCOTUS in power has declared. Now they have asserted their view of the proper role of women, which is to bear children regardless of the means to raise them, and they have made clear they are coming after anyone who dares to claim that America is a place to be different from the straight, white men who want credit for all that is good in this country.
What I find most appalling, though – even as I try to contemplate what they are doing to affirmative action – is the patent and blatant willingness of the most revered jurists in our legal system to take and decide a hypothetical set of facts in order to declare that racist and homophobic and anti-religious members of the major ruling class in this country can refuse to honor our anti-discrimination statutes when it comes to public business services. When jurists can ignore the requirement for a controversy in a litigated case, we are sunk. This is first-year law school instruction in Civil Procedure courses, and they ignore it for their own ends. To me, that is the scariest thing of all. No one but someone schooled in the law will understand what they did. Even the smartest layperson will not understand the importance of a “case in controversy” requirement for a court dispute, and any person, elected or in the media, can talk about that case as though the issue was up for discussion. It wasn’t. When I see our highest court construct a reason to take a big shot at our LBGTQ community, we can see that anti-Semitism and other anti-sentiments are not far behind. As bad and dangerous as the erasure of affirmative action was with this Court’s sleight of hand, what they did for that fictional web designer was the scariest of all. They will stop at nothing if they can do that without blinking.
Everyone should read Rebecca Solnit’s “ Hope in the Dark” she is a bright light who can demonstrate the power that we do have. Thanks Robert for this timely essay today. The Supreme Court have become the Grand Inquisitors. With our three exceptional exceptions. It is time to act through our votes and voices.