President Biden has a very narrow path to get his big legislative plans through Congress. Democrats can lose only a few votes in the House and none at all in the Senate, and only then if they go through the budget reconciliation process or decide to reform the filibuster. But the greatest threat to his agenda is only now beginning to stir — the reactionary Supreme Court majority.
The court recently further eroded habeas corpus rights for criminal defendants, and has accepted new cases that may basically allow abortion bans at the state level and may invent a constitutional right to carry a concealed weapon in every state. Should Biden get his programs passed, there is a strong possibility they will be struck down or weakened by the court.
Worse, all too many liberals are in deep denial about the nature of this threat. One of them is on the Supreme Court himself: Justice Stephen Breyer, who is 82 years old yet thus far refuses to retire — as Justice Ruth Bader Ginsberg refused to in 2013, which ended up handing her seat to to the right-wing ideologue Amy Coney Barrett.
Breyer is reportedly worried that retiring so he will be replaced by a liberal would introduce politics (heaven forfend!) into the court, and that would threaten its power and legitimacy. In a recent speech at Harvard Law School, he argued: "My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart … They are loyal to the rule of law, not to the political party that helped to secure their appointment."
He is even expanding this speech into a book. The Supreme Court "earned its authority by dispensing impartial justice and thereby accumulating public trust," asserts the book's PR copy. The real problem, apparently, is rube citizens have been tricked by politicians into thinking that justices are not impartial arbiters of the law:
If public trust is now in decline, the solution is to promote better understanding of how the judiciary actually works: overwhelmingly, judges adhere to their oath to avoid considerations of politics and popularity. The peril facing the Supreme Court comes less from partisan judges than from citizens who, encouraged by politicians, equate impartial justice with agreeable judicial outcomes. [Harvard University Press]
This is comically blinkered. First off, the court did not "earn" its most important authority, the ability to overturn or rewrite laws passed by Congress (that is, judicial review). It simply took that for itself in a cynical power grab despite the Constitution saying nothing whatsoever about it. Second, this romantic notion about the sanctity of the "judicial oath" is trash history. In reality, when a tiny handful of judges (usually coming from the richest and most powerful stratum of society) have de facto legislative power, there is every possibility they will abuse it. Thomas Jefferson argued that under judicial review, "The Constitution … is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please."
Sure enough, for virtually its entire history the Supreme Court has been a ruthless defender of entrenched power and white supremacy, often using transparently fraudulent reasoning, or none at all. To pick one example out of hundreds, the Fourteenth Amendment was intended to protect the civil rights of freed slaves, but the court largely refused to use it for this purpose and effectively ratified the Jim Crow era that would keep Black Americans as second-class citizens for more than a century. The court then decided the amendment gave those same rights to corporations — but didn't even bother making an argument for the principle in their decision. As historian Richard White writes, this doctrine "potentially made licensing laws, strikes, boycotts, the closed shop, and even some public health regulations the legal equivalent of slavery."
Breyer himself has been present for all the worst recent offenses. As the legal experts on the excellent 5-4 podcast explain in detail, in Bush vs. Gore, the conservative majority handed the presidency to their preferred candidate in a decision so twisted and illogical that the opinion itself stipulated it should not be cited as precedent for future cases. In Citizens United vs. FEC, they opened the floodgates for nearly-unlimited corporate spending in politics by ludicrously insisting there can be no free-speech distinction between an individual making a political contribution and a behemoth corporation doing so. In Shelby County vs. Holder, Chief Justice John Roberts gutted the Voting Rights Act in a decision that didn't even cite the Constitution — unleashing a torrent of new vote suppression bills, which was the intended effect.
In short, the Supreme Court is full of hypocritical partisan hacks, and always has been. The reason it's gotten worse lately is yet more conservative politics: Then-Senate Majority Leader Mitch McConnell holding Antonin Scalia's seat open in 2016 (in violation of all precedent) and Anthony Kennedy strategically retiring in 2017. The only people who seem blind to this fact are liberals like Breyer, whose anxious hand-wringing about the court's reputation only serves to prop up the legitimacy of reactionary judicial rule-by-decree. It's surely one reason why in a recent poll, just 63 percent of Democrats supported the idea of Biden adding more justices to the court to erase the conservative majority, while 95 percent of Republicans were opposed. It's a safe bet that if the tables were turned, and it was a liberal court interfering with GOP governance, 95 percent of Republicans would hold the opposite position.
Until liberals can squarely face what the Supreme Court really is — a highly political, highly ideological, unelected super-legislature — they will continue to be steamrolled by conservative judicial activism, and they'll deserve it.
