With the storm of really wild events overcoming the political scene in this great republic these days, it’s difficult for me to focus on a single issue, but I should, and I have. The impending advise and consent charade by the U.S. Senate (previously known as “The World’s Greatest Deliberative Body”). The resulting installation of another extremely far-right thinking justice is troubling.
The actions of the Republican leadership and majority in the Senate as they race almost breathlessly to confirm Judge Barrett are gallingly hypocritical. I remember the same characters sanctimoniously blocking the nomination of Judge Garland far earlier in an election year. Whether or not they will be punished for this and other hypocrisies remains to be seen. In most cases, we can only hope; but in our case, we can act. Here in Arizona, we have a chance to remove a practicing and sycophantic Senator. We need to VOTE for Mark Kelly.
That being said, it appears that the current Democratic minority in the Senate doesn’t have the legislative tools to bring the Republican majority from dutifully lining up behind Mitch McConnell, in their headlong run to get Judge Barrett installed her on the Supreme Court on or before November 3. This is particularly galling to me. I have watched Mitch McConnell run circles around Democratic majorities and minorities in the Senate for years. He has succeeded because:
(1) He keeps his caucus in line. This has become easier through the election of ideologues and political lightweights to senate seats in red states.
(2) He knows the rules and how to “adjust” them in his favor whenever possible.
(3) He is not afraid to be a hypocrite whenever necessary.
The Democrats are somewhat like a bunch of Christian Scientists with appendicitis. They know what will happen, but they are not ready to take the radical measures to stop it.
So, what happens with a conservative Court with a 6-3 tilt: First, it means that to sustain any existing policies and programs that are anathema to arch-conservatives, two justices will have to be persuaded to join the three liberal justices to achieve a 5-4 majority. This may prove difficult in many cases. It may be easier to be sure to swing one justice in many cases, but that still leaves a 5-4 minority.
Second, it will leave any program or initiative enacted by a Congress, or even a state legislature with Democratic majorities would be at risk of adverse judicial review. This mirrors the dilemma faced by Franklin D. Roosevelt, who found many of his New Deal Programs blocked by a conservative majority on the Court. His solution was to expand or “pack” the Court. It didn’t work then, but the move spooked some of the justices to moderate their subsequent decisions or even retire. Some historians and economists suggest that the Court’s truculence may have delayed recovery from the Great Depression until the outset of World War II.
So, what are Democrats to do?
We may reach our objectives of winning the White House, both houses of Congress, and even perhaps a few state houses (like Arizona, perhaps)? What actions are open to a Democratic president and leaders of the House and Senate? We need to understand that the first move is up to the Court. Indeed, they a case before it in the latest attack on the Affordable Care Act.
We have been cautioned to expect a rash of cases next year on various states’ actions to restrict abortion and other issues such as firearms safety, free speech, and certainly the regulation of business. The status of Arizona’s Independent Redistricting Commission could even be in jeopardy by a revived effort to question its authority. If the Court acts, Congress and the President will react; and what tools do they have at their disposal?
Congress can rewrite laws so that it will be harder for the Court to rule these laws unconstitutional. We will need an effective defense of enacted legislation or regulation by an effective Justice Department ready to defend the laws of the land without fear or favor.
If the Court persists in maintaining doctrinaire partisan conservative positions on this wide range of issues important in this 21st-century republic, then the president and Congress will have to respond. Remember that the Judiciary Branch below the Supreme Court is very beholden to the Legislative branch for resources, including people to do its business, up to and including the organization of judicial districts and circuits.
The size of the Supreme Court is not cast in stone at nine justices. During the Civil War, Lincoln expanded and contracted the number of justices as the circuits were reorganized when the Southern states rebelled and then returned to the Union. The number settled back to nine as the justices were relieved of circuit-riding after the Civil War. It is doubtful that the Court would want to get into a power struggle with either the Legislative Branch or the Executive Branch; but the future is unsure.
We can only recall the wisdom of journalist and commentator Findlay Peter Dunne’s mythical Irish bartender Mr. Dooley, who at the turn of the last century said; “no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns.” Perhaps with the evidence of the 2018 election, and a similar “blue wave” election in the next few weeks will convince the worthy justices of the course of public opinion is running in a more progressive direction.
Findlay Peter Dunne in Wikipedia:
Dunne also supported Roosevelt in late 1901 when the president invited Booker T. Washington, an African American, to the White House for a meal—the president’s action caused outrage among white Southerners, who overwhelmingly voted for the Democratic Party. Dooley described Washington’s visit as “going to be the ruination of President Teddy’s chances in the South. Thousands of men who wouldn’t have voted for him under any circumstances has now declared that under no circumstances would they now vote for him.”[l]
Another 1901 piece led to one of Mr. Dooley’s most famous quotations. Several lawsuits brought in the wake of the 1898 war dealt with whether the Constitution applied with full force in the former Spanish colonies annexed by the United States, none of which had been granted an organized government by Congress. This question was known as whether the Constitution follows the flag.
In 1901, the United States Supreme Court decided these lawsuits, known as the Insular Cases. The justices’ written opinions were difficult to understand, and the Court deeply divided, but the net effect was to hold that the Constitution did not follow the flag. The decisions allowed Mr. Dooley to puncture the Court’s ivory-tower reputation, “no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns“.[m] The phrase has often been quoted, sometimes by people who have never heard of Mr. Dooley.