Requiem for the Supreme Court

That’s the title of an article by Linda Greenhouse, the longtime observer of the Supreme Court for the New York Times. She writes:

They did it because they could.

It was as simple as that.

Greenhouse is no firebrand, but she concludes that the Court’s reactionaries have destroyed “the legitimacy of the Court”.

The title of Jill Filipovic’s article for The Guardian is “Itโ€™s time to say it: the US supreme court has become an illegitimate institution”. She writes:

As of 24 June 2022, the US Supreme Courtย should officially be understood as an illegitimate institution โ€“ a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.

On Friday, in Dobbs v Jackson Womenโ€™s Health, the supreme court overruled its nearly 50-year precedent of Roe v Wade, the 1973 case that legalized abortion nationwide. It is difficult to overstate just how devastating this is for pregnant people, for women as a class and for anyone with even a passing interest in individual freedom and equality.

But itโ€™s also devastating for those of us who care quite a bit about American democratic traditions and the strength of our institutions. Because, with this ruling, the Supreme Court has just signaled its illegitimacy โ€“ and it throws much of the American project into question. Which means that Democrats and others who want to see America endure as a representative democracy need to act.

Of the nine justices sitting on the current court, five โ€“ all of them in the majority opinion that overturned Roe โ€“ were appointed by presidents who initially lost the popular vote; the three appointed by D____ T____ were confirmed by senators who represent a minority of Americans. A majority of this court, in other words, were not appointed by a process that is representative of the will of the American people.

Two were appointed via starkly undemocratic means, put in place by bad actors willing to change the rules to suit their needs. Neil Gorsuch only has his seat because Republicans, led by Mitch McConnell, blocked the ability of Barack Obama to nominate Merrick Garland โ€“ or anyone โ€“ to a supreme court seat, claiming that, because it was an election year, voters should get to decide.

And then D____ T____ appointed Amy Coney Barrett in a radically rushed and incomplete, incoherent process โ€“ in an election year.

And now, this court, stacked with far-right judges appointed via ignoble means, has stripped from American women the right to control our own bodies. They have summarily placed women into a novel category of person with fewer rights not just than other people, but than fertilized eggs…. After all, no one else is forced to donate their organs for the survival of another โ€“ not parents to their children, not the dead to the living. It is only fertilized eggs, embryos and fetuses that are newly entitled to this right to use anotherโ€™s body and organs against that otherโ€™s will; it is only women and other people who can get pregnant who are now subject to these unparalleled, radical demands.

This raises a fundamental question: can a country be properly understood as a democracy โ€“ an entity in which government derives its power from the people โ€“ if it subjugates half of its population, putting them into a category of sub-person with fewer rights, freedoms and liberties?

The global trend suggests that the answer to that is no. A clear pattern has emerged in the past few decades: as countries democratize, they tend to liberalize womenโ€™s rights, and they expand abortion and other reproductive rights. Luckily for the women of the world, this is where a great many nations are moving.

But the reverse is also true: as a smaller number of countries move toward authoritarian governance, they constrict the rights of women, LGBT people and many minority groups. We have seen this in every country that has scaled back abortion rights, reproductive rights, and womenโ€™s rights more broadly in the past several years: Russia, Hungary, Poland, Nicaragua and the United States.

The same week that the Supreme Court issued its decision in Dobbs, the US House of Representatives has been holding hearings to inform the public about what actually happened during the attempted coup of 6 January 2021, and to ideally hold perpetrators, traitors and seditionists to account. We are only a year and a half past that disgraceful day, when an angry mob decided that they, an authoritarian, patriarchal, white supremacist minority, should rule โ€“ that any other outcome, no matter how free and fair the election, was illegitimate.

The Supreme Court decision stems from that same rotted root: the idea that a patriarchal minority should have nearly unlimited authority over the majority. The [reactionaries] on the court rightly understand that individual rights and womenโ€™s freedoms are incompatible with a system of broad male control over women and children, and a broader male monopoly on the public, political and economic spheres.

But that authoritarian vision is also incompatible with democracy.

And so Democrats now have a choice. They can give speeches and send fundraising emails. Or they can act: declare this court illegitimate. Demand its expansion. Abolish the filibuster. Treat this like the emergency it is, and make America a representative democracy.