The Supreme Court Gaslighting Needs to Stop
Forget Biden's Commission, forget the political fears—Democrats are running out of time to address this rogue Supreme Court.
Yesterday, President Biden joined a chorus of Democrats decrying SB8, the Texas law that effectively outlaws abortions after six weeks, in blatant violation of Roe v. Wade. Here’s what he said:
Today, Texas law SB8 went into effect. This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.
The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes. And, outrageously, it deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health care clinic, or strangers with no connection to the individual.
My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.
Even the most casual observer of American public life over the past several years will immediately notice an alarming omission from Biden’s statement: the Supreme Court. The law—which was deliberately designed to subvert judicial review—was introduced just months after Amy Coney Barrett took over Ruth Bader Ginsburg’s seat on the Court, ensuring a far-right, anti-abortion majority for a generation. It’s not hard to see why: Texas Republicans sensed an opportunity to eviscerate decades of Supreme Court precedents protecting the constitutional right to an abortion, and they took their shot. The Court, in turn, greenlighted this cynical scheme, allowing the law to go into effect without even scheduling oral argument or issuing a full ruling.
The outright contempt for democratic norms and the rule of law evident in this “ruling” is striking. It was also striking when the Supreme Court effectively abolished the Voting Rights Act, and when it tossed out campaign finance laws, and when it authorized discrimination against gay people under the guise of religious freedom. I could go on. But the point here is simple: everyone—from progressives, to Republicans, to the Texas State Legislature—understands that the primary fight over fundamental rights is occurring at the Supreme Court. And progressives are losing badly.
How We Got Here
Everyone, that is, besides President Biden and the leadership of the Democratic Party.
Progressives have been warning about this outcome for years. As soon as Mitch McConnell and the Republicans orchestrated their scheme to steal a Supreme Court seat from President Obama, the battle lines were clear. The Court was no longer a judicial body insulated from the partisan winds—it was now a nakedly political weapon being used ruthlessly by the Republican Party. If it wasn’t clear then, it was beyond question when Republicans rammed through Amy Coney Barrett just days before President Trump lost the 2020 election.
After the Barrett saga, it appeared for a moment that the tide was breaking. Even Senator Chris Coons—by no means anyone’s idea of a radical—indicated he would be on board with court packing if Barrett was confirmed. But following Biden’s election, it didn’t take long for the waters to cool. In April, President Biden issued an executive order establishing the Presidential Commission on the Supreme Court of the United States, a group of bipartisan legal experts, tasked with providing “an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”
The Commission functioned as a signal that President Biden is not serious about court reform. The Commission, which was asked merely to “study” the issues rather than issue any policy recommendations, is comprised of several conservative academics, including a far-right former judge who wrote an opinion overturning the Affordable Care Act. It was also given six months to operate, which thus far, it has not done much with: over 100 days in, the Commission has held one 20 minute organizational meeting and hosted two panels.
Several months ago, you may have made a good-faith argument that the Commission was a good idea to buy time while more moderate members of Congress got on board with court reform. Indeed, there was no shortage of urgent priorities when Biden came into office. But now, with Roe v. Wade no longer the law of the land and everything from voting rights to gun control in the Court’s cross-hairs, punting on court reform is no longer just a political choice. It’s an outright surrender.
The Gaslighting Continues
It’s one thing to come to a political calculation about the merits of court reform, but its another thing to categorically ignore the defining issue of our time. Neither President Biden, House Speaker Nancy Pelosi nor Senate Majority Leader Chuck Schumer even mentioned the Supreme Court in their brief statements on SB8. The talking point, rather, appears to be that Democrats will “fight” for a woman’s right to choose.
It is not clear what such a fight looks like without addressing the Supreme Court. On Thursday, President Biden announced a “whole of government effort” to respond to SB8, but his lengthy statement is not at all clear on what that means. The federal government is unequipped to override a state law that the Supreme Court has approved of, short of passing a federal law enshrining the right to an abortion. Democrats have already introduced such a law—but good luck passing it if you’re unwilling to nuke the filibuster.
Meanwhile, President Biden is still silent on the sole, and most obvious, solution: adding seats to the Supreme Court. When directly asked about it yesterday, President Biden’s press secretary again demurred, stating Biden will not even make an assessment on the issue until his Commission is finished working. That date will come some time in December, just months before the midterm elections start to heat up. Nobody with a straight face can claim Democrats seriously plan on introducing meaningful court reform in an election year—it’s a pure fantasy.
The insistence on ignoring or punting the issue while fundamental rights are tossed out the door one-by-one has reached the level of cruel psychological abuse. This is nothing new, as elite pundits and politicians have insisted all along that any discussion of court reform was premature, or inappropriate, when we were yet to give the justices a chance.
It’s Worse Than You Think
Until yesterday, I chalked this up to pure manipulation—Democrats knew court packing was necessary, but refused to step on what they perceive as a political third rail. But then, in the wake of this mess, Politico’s Burgess Everett reported that, astonishingly, Democrats have not even come to a conclusion on whether to mention the Supreme Court in their re-election campaigns. To Democrats, the Supreme Court merely “might” be an issue “in next year’s election”—it’s certainly not something to do anything about now.
This isn’t manipulation. It’s outright delusion on a scale that is truly hard to believe. The Supreme Court is probably the single best issue for Democrats to highlight in a Senate campaign, considering a Senate majority is all that stands in the way of a 7-2 conservative firewall on the Court. But that’s an issue for another day. What this insight highlights is that Democrats are far from having any plan on court packing or any other potential solution. They haven’t even come to a conclusion on whether they should talk about it.
Sadly, this isn’t surprising. As noted above, the idea that Democrats will unleash a grand plan to address the Supreme Court in an election year is simply unfathomable. It’s not happening. Instead, we are barreling towards the possibility of a Republican-controlled Senate just over a year from now, with the 83 year-old Justice Breyer potentially still on the bench.
So not only do we have a rogue, undemocratic Supreme Court determined to squash every constitutionally-protected right cherished by progressives, but also we have an opposition party without a plan—or apparently even the intention—to fight back. With an unfriendly midterm election landscape rapidly approaching and a president determined to put this issue on the back-burner, it pains me to say it may be too late. But if we are to resist being ruled by six far-right, unelected judges, our leaders better get to work now.