by Zina Greene, Member, Human Rights & Democracy Task Force
“It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by us—but to five oracles in robes,” say two Harvard Law Professors, Nicolas Bowie and Daphne Renan, in a recent Atlantic Magazine article.
From renowned law professors like Lawrence Tribe to activist politicians like AOC, from constitutional law professors like Jamie Raskin, and from Jenifer Rubin, a respected and seasoned Washington Post columnist—the consensus is in: The Supreme Court would not have this much power if the Senate were functional. Congress should be passing laws; the Court is not the body to make law! Congress is.
Roe should have been codified years ago. The purpose of the EPA law overturned by SCOTUS last week should have been modified by Congress years ago to include “climate change” as a purpose. Laws like the one in New York that required a reason to carry a concealed weapon, and nullified last week by SCOTUS, should have been codified by Congress along with lots of other gun safety laws. Yet the murder goes on, not even taking a holiday break for July 4th.
We need an action plan. First, we must to elect a real democratic Senate with at least two more Democratic Senators and we need to protect the ones up for reelection. The latest polls show this is possible, but we must also secure that the House remains Democratic. Second, we must totally remove the filibuster, a relic of segregation and a hindrance to any form of functionality. Third, we must revamp the Supreme Court and, as Jenifer Ruben says, “Everything should be up for discussion, from court expansion to term limits to restrictions on the Supreme Court’s jurisdiction.”
As to “packing” the Court, President Biden says he doesn’t want to do that. Sorry to say, the Court was already packed by Mitch McConnell as the Democrats stood by silently, or effectively silently. First, he did not schedule a hearing for Merritt Garland in 2016 because it was “too close” (nine months away) to an election for President; then he ran a sham hearing for a flawed candidate—Justice Brett Kavanaugh—and then he scheduled a hearing for Amy Comey Barret after absentee voting had already begun in 2020 for a new President. To squeeze in three nominees in such a deceitful manner is clearly a form of packing. Democrats would be “unpacking” the court by adding three justices and cannot do it soon enough to prevent SCOTUS from ripping the fabric of our freedoms and security. The cases for decisions next June have already been selected.
Term limits cannot apply retroactively, and while that alone would not solve today’s problems, it should be considered. I am old, but I would say that people my age (over 80) should not be running the country. Whether it be the President, the Congress, or the Judiciary. By allowing this to happen, we are turning off the creativity, energy, and forward thinking of our youth. Older folks are more in the preservation stage and are most likely nostalgic for the old days. Our democracy needs to be strengthened and moved forward.
Congress must put restrictions on SCOTUS. Judicial supremacy it not noted in the Constitution. Congress can reverse each wrong-headed decision SCOTUS issued last month. The blame falls to us who failed to demand more from our elected representatives. We must make our policies and our politics more responsive to majority rule. How Congress allocates power to interpret the Constitution should be at the heart of those reforms.
If Congress does not take a more responsive role to majority rule, who gets to decide the promise of a genuinely multiracial democracy? Who gets to decide the content of the commitments for all Americans—residents of the 50 states, a five-justice majority, or our national legislature?