Kamala Harris’ campaign slogan, “When we fight, we win!” emphasizes the need for Democrats to confront judicial overreach head-on if they want to fulfill their promises after elections. The article argues that Democrats have avoided this fight for decades, and as a result, democracy has been endangered. The Supreme Court’s decisions, like the Trump v. U.S. case granting extensive powers to the president, and the Dobbs decision, which curtailed reproductive rights, highlight the court’s role in undermining democracy.
The article suggests that the Supreme Court’s unchecked power could thwart significant legislation, such as environmental regulations, pointing to the Loper Bright decision that weakened the EPA. The potential for the Supreme Court to block legislative actions, even if Democrats win elections, raises concerns about the power of unelected judges overriding the will of the people. The article calls for using Article III, Section 2 of the Constitution, which allows Congress to limit the court’s jurisdiction, as a way to curb its power.
The No Kings Act, introduced to counteract the Trump v. U.S. decision, exemplifies how Congress could restrict the Supreme Court’s appellate jurisdiction. The article argues that this approach should be applied to all significant Democratic legislation to ensure its effectiveness. It criticizes President Biden for not fully grasping the necessity of this fight and expresses hope that Kamala Harris, with her legal background, will be better equipped to lead this charge.
Kamala Harris
Biden’s recent proposals for Supreme Court reforms, like term limits and a code of ethics, are seen as inadequate and unlikely to succeed. Instead, the article suggests that the No Kings Act, which directly challenges the Supreme Court’s authority, is a more viable solution. Biden’s senatorial background is contrasted with Harris’ experience as a prosecutor, district attorney, and attorney general, making her more prepared to take on the judicial system.
The article warns that avoiding this battle against judicial tyranny could have dire consequences for democracy. The media and political elites have often framed this struggle as a threat to judicial independence rather than a necessary defense of democracy. Harvard Law professor Nicholas Bowie’s testimony to Biden’s court-reform commission supports the idea of “jurisdiction-stripping” as a way to rein in the court’s power.
Bowie’s historical analysis shows that the Supreme Court has often been a threat to democracy, citing examples from Alexis de Tocqueville and decisions like Dred Scott and Shelby County v. Holder. He argues that the court has repeatedly invalidated federal laws aimed at expanding political equality, and its actions have often facilitated racial injustice. The article suggests that this history is crucial to understanding the need to disempower the court.
Ryan Doerfler and Samuel Moyn’s paper “Democratizing the Supreme Court” offers a framework for understanding different court reform proposals. They argue that the Supreme Court’s current legitimacy crisis stems from its overreach in national policy decisions, which is inconsistent with democratic principles. They advocate for disempowering the court rather than restoring it to a mythical non-partisan past.
The article contrasts two types of reforms: “personnel” reforms, like court expansion or term limits, which would not change the court’s power, and “disempowering” reforms, like jurisdiction-stripping, which would reduce or eliminate the court’s ability to intervene in national policy. Disempowering reforms are seen as more effective in addressing the problem of judicial tyranny and making the political system more responsive to voters.
The article concludes that while court expansion might be necessary to facilitate disempowering reforms, the ultimate goal should be to reclaim decision-making authority for the people. A combination of reforms, such as jurisdiction-stripping, requiring supermajorities for decisions, and implementing ethical standards, could create a Supreme Court more in line with democratic values.
