Now What?

 Good point:

Stunning. May was brutal for Trump in federal court: 96% loss rate ⚖️. Even GOP-appointed judges have ruled against the admin 72% of the time. District courts are doing their job defending the Constitution. Soon the Supreme Court may be the only court unwilling to defend the rule of law.

And if won’t be the first time in American history the Supreme Court is athwart the law. Dobbs is Dred Scott redux, IMHLO. But that one already seems to be so far in the rear view mirror it might as well have been an age ago. I was just reading a handful of analyses trying to fix blame for our situation without actually fixing blame, and it all came down to “narratives” and FoxNews and “right wing media spheres” and other such boogeymen. Ignore the people at town halls, ignore the millions in the streets over and over and over again, ignore the polls, and in true internet fashion navel gaze at what’s on Twitter and what the usual suspects (Fox News, courtesy of ubiquitous video clips on Twitter) said.

I sometimes think FoxNews has a bigger audience on social media than it does on cable. And I’m quite sure the people who gave Trump the majority vote in 2024 (and wouldn’t now) are not endlessly discussing the matter on Twitter or BlueSky.

But the interesting question is: what are the Supremes gonna do? There are indications they realize they’ve created a Frankenstein monster. They want to overrule Humphrey’s Executor, but they don’t want Trump meddling with the primal forces of the Federal Reserve. I guess even the majority on the Roberts Court have stock portfolios. They want to protect the “unitary executive,” but that executive is a toddler with a shotgun, not the genial but Alzheimer’s addled Ronnie Reagan. They want to stick to their ideology, but it’s increasingly out of step with reality and the rest of the courts in the country. How far do they go in utterly ignoring the rule of law the lower courts are working hard to enforce?

At what point, asks the “existential” question, do they toss their legitimacy to the winds?

Dred Scott and Plessy v Ferguson at least had solid support among the slave states in pre-13th and 14th Amendment America. (And I still think we need an amendment overturning Trump v U.S. That’s the whole reason Trump thinks he’s invisible and bulletproof and running the world.) The Court has handed down even more damaging opinions which were likewise later reversed, but which were never as notorious as those two. The Court has, in other words, repeatedly threatened its own legitimacy. It is doing so again. 

The 14th and 15th amendments were written to overturn Supreme Court opinions. Unfortunately the 15th depends too much on enabling legislation, which the Roberts Court has disallowed. Perhaps we need an amendment to fix that, too. (We had to repeal Prohibition, we can certainly strengthen the 15th.) But it may be time to rein in the Roberts Court, to reject their rule the way we finally rejected the rule of the Tawney Court. The Supreme Court is supreme in title only. It is not supreme over we, the people. And it is not entitled to impose its version of the Presidency upon us without our consent. We can alter that by altering the Court under the next Democratic president.  More justices, staggered terms, forced withdrawal from the bench after a certain age (as we do fur trial judges), even an Amendment to alter the language of Article III, if necessary. We can rein in the Court and remind them who actually holds the whip hand. 

You will say thus could threaten a “good court” like the Warren Court, but that Court was the exception that proved the rule.  Besides, Brown v Board is more honored in breach than in the keeping, and about all that remains of their criminal rights rulings is the familiar Miranda warning we all know from TeeVee. Most of the rest has been whittled away without anyone even noticing. As a society we constantly revert to the mean, to status quo ante. The Court can’t ever save us from ourselves. But it can do us a great deal of harm. 

And we can save ourselves from that.