Robert Hubbell shares some interesting and informative comments about our Supreme Court, which seems determined to roll back the past century of social progress. The Court is whittling away—in some cases, hacking away—at our rights. Whereas we long believed that the High Court would always defend the rights of citizens, we can no longer count on it. The Court majority seems determined to impose a far-right “Originalist” philosophy on the entire nation. Of course, if they were really Originalists, pretending that it was 1790, Amy Coney Barrett and Clarence Thomas would resign at once. The Founding Fathers never imagined that women and Blacks would vote, become lawyers and judges. Resign, Amy and Clarence.

Robert Hubbell writes:

Last week’s rulings from the Supreme Court continue to lead the news as the nation celebrates the 4th of July holiday. The Washington Post’s headline reads Biden faces renewed pressure to embrace Supreme Court overhaul. The details matter less than the fact that the notion of Supreme Court reform is the top story on a day when the Court issued no opinions. And the Supreme Court is top of mind for many readers, many of whom recommended articles and action items for other readers in yesterday’s Comment section. Chief among those recommendations was Rebecca Solnit’s exhortation in The Guardian, The US supreme court has dismantled our rights but we still believe in them. Now we must fight.

Solnit is a gifted writer who hit the mark in capturing the feelings of millions of Americans. She first addresses the feelings of anger and frustration about a Court that is out of control:

The first thing to remember about the damage done by the US supreme court this June and the June before is that each majority decision overturns a right that we had won. [¶]

Each of those victories was hard-won, often by people who began when the rights and protections they sought seemed inconceivable, then unlikely, then remote, and so goes the road of profound change almost every time. [¶]

To recognize the power of this change requires a historical memory. . . . Memory is a superpower, because memory of how these situations changed is a memory of our victories and our power. Each of these victories happened both through the specifics of campaigns to change legislation but also through changing the public imagination. The supreme court can dismantle the legislation but they cannot touch the beliefs and values.

In words that I wish I had written, Solnit urges us to action:

[H]istory shows us that when we come together with ferocious commitment to a shared goal we can be more powerful than institutions and governments. The right would like us to feel defeated and powerless. We can feel devastated and still feel powerful or find our power. This is not a time to quit. It’s a time to fight.

Other readers shared Jennifer Rubin’s op-ed in The Washington Post, Self-government is worth defending from an illegitimate Supreme Court.

On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable.

On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable.

Rubin identifies the many ways in which the Court has strayed from its legitimate role as a judicial body (familiar ground for readers of this newsletter) but highlights the particularly destructive role of the “Major Questions Doctrine.” That judge-made doctrine arrogates to the Court the right to overturn any decision by a federal agency with which the reactionary majority disagrees. The pseudo-rationale for the doctrine is that if Congress intends to delegate discretion to federal agencies on “major questions,” it should use a level of specificity that is to the liking of the Supreme Court.

Says who?

The doctrine was invented from whole cloth to justify judicial activism in service of an anti-government agenda. As Jennifer Rubin writes,

The mumbo-jumbo “major questions doctrine” is not the stuff of judging. No wonder the chief justice got touchy when Kagan pointed out that the court “is supposed to stick to its business — to decide only cases and controversies and to stay away from making this Nation’s policy about subjects like student-loan relief.”

Ian Millhiser explains the Major Questions Doctrine in detail in his article in Vox, entitled, The Supreme Court’s student loan decision in Biden v. Nebraska is lawless and completely partisan. Millhiser does not mince words:

Let’s not beat around the bush. The Supreme Court’s decision in Biden v. Nebraska, the one canceling President Joe Biden’s student loan forgiveness program, is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as “major questions” which has no basis in any law or any provision of the Constitution.

Roberts’s opinion in Nebraska effectively overrules the decision of both elected branches of government. It overrides Congress’s unambiguous decision to give this power to the secretary of Education. And it overrules the executive branch’s judgment about how to exercise the authority that Congress gave it. As Kagan writes in dissent, “the Secretary did only what Congress had told him he could.”

Like Rebecca Solnit, Jennifer Rubin ends her op-ed on a note of optimism and determination to right the wrongs of the Court:

On this Independence Day, which celebrates rebellion against a monarch lacking consent of the governed, it behooves us to dedicate ourselves to robust and authentic democracy: government of the people, by the people, for the people — not by arrogant right-wing justices….

Without regard to any of the present controversies surrounding the Court, substantially increasing the Court’s size is a reasonable proposition. But considering the Court’s descent into illegitimacy and usurpation of legislative power, increasing its size substantially is an easy call: We must do it to overcome the reactionary majority. We have no other choice.

Enlarging the Court requires only a majority vote in both chambers of Congress, while virtually every other structural reform would require a constitutional amendment—a 2/3rds approval in both chambers of Congress and ratification by 3/4ths of the states. That will never happen. (If you propose imposing 18-year term limits, I urge you to read the plain words of the Constitution: Article III Section 1 | U.S. Constitution.)

Urgency is required. As reader John C. posted in response to my 4th of July newsletter,

I agree that the long term looks promising, but many people cannot wait for the long term. Women who want abortions, victims of gun violence, refugees, same-sex couples who want goods or services, students who are barred from colleges, and so forth are suffering now and lack the luxury of waiting.

We can work our way out of this daunting situation in the short term at the ballot box—by retaking the House and defending the Senate in 2024. And then demand boldness from our leaders. While they have temporized and appointed commissions and fretted about the “legitimacy” of an enlarged Court, tens of millions of Americans have been injured by a rogue Court that abandoned the rule of law and adopted the agenda of religious nationalism. The solution is staring us in the face and is within our grasp. Let’s take it!

In the words of Rebecca Solnit, “This is not a time to quit. It’s a time to fight.”

And if you are looking for guidance on where and how to direct your fighting spirit, there is no better place to look than Jessica Craven’s Chop Wood Carry Water on Substack. Her post on the 4th of July is filled with action steps you can take, including word scripts for calling your elected officials in Washington, D.C., and important organizing / fundraising events, such as:

  • An event on Wednesday, July 5th at 5:30 PM Eastern with Senator Sherrod Brown and Ohio Democratic Party Chairwoman Liz Walters about how you can help get out the “NO” vote in the Ohio special election set for August 8th. Register here.
  • A Force Multiplier event with Senators John Tester and Raphael Warnock on Monday, July 10, 7:00 PM Eastern. The event will help build grass roots support for Senator Tester in what is expected to be a hard-fought campaign. Register and donate here.

While you are at it, sign up for Jessica Craven’s Chop Wood, Carry Water for the latest on daily actions you can take to help defend democracy!

Please open the link to read Robert Hubbell’s concluding thoughts.