Here is one of those things we can see on the horizon and it will be important to be ready for. It will become especially important if Democrats take both the House and the Senate.
It’s a given that even with only the House under Democratic control, we’re in for a period of pretty intense inter-branch conflict. Just how intense, whether Democrats will fight as much as their partisans demand … those things we can’t know. But this basic feature of the next Congress is pretty clear. What I’d like to discuss here is a wrinkle in that fabric that hasn’t gotten enough attention.
We know that the corrupt majority on the Supreme Court has been busily dismantling the constitutional order and empowering the second branch of government (the executive) over the first (congress). But that fact has been significantly obscured by the fact that the president’s party controls Congress. And it’s more than just that Republicans control both chambers. The current Republican party is subservient to Donald Trump to a degree unknown in modern American history and arguably at any time in American history. So to a great degree the first branch is being run from the second branch. You don’t clearly see the impact of the Court handing the power of the purse to the president because the Congress already gave it to him. Or, more specifically, you don’t see a lot of fighting over it. You don’t see the topic getting litigating in the court of public opinion and political action, or Congress trying to reclaim those powers. So we don’t yet how much additional law the Corrupt Court would make to prevent Congress from wrestling some of that power back.
In a way, maybe this just comes under the heading of “everything sucks.” But we can be more proactive and forward thinking than that. No form of Court reform can take place before 2029 at the earliest, and then only with a Democratic trifecta. So no matter what happens on November 3rd, 2027 and 2028 are together the window of time for making the case for Court reform, building public support for it, most especially making a public argument that the Court’s corruption isn’t just about technicalities of independent agencies or something called impoundment.
The issue of abortion rights and the Court’s role in it is heavily politicized, the issue of money in politics and Citizens United is, but to a much lesser extent. Callais and the protection of Black voting rights and political power is heavily politicized in the Black community but much, much less outside of it. The point is that while the public’s approval of the Court has nosedived in recent years, Court reform is little known or understood outside a fairly small slice of the electorate. To make court reform electorally viable you have successfully argue that it affects the lives, pocket books, safety and freedom of average voters.
That’s the challenge that has to be taken up in the next two years, no matter what the outcome of the election is. But if Democrats capture both houses of Congress, a lot of that public argument should take place, will inevitably take place, as part of the fight over the near-dictatorial power the Corrupt Court gifted to Donald Trump.
And yes, it’s Donald Trump. Because while other Republicans would likely get some of the benefits, all these decisions were made under the majority’s “when it’s Republicans” doctrine.
One final point: the point of Court Reform is to reform the Court. To put it more specifically, it is to break the power of the corrupt majority which is making war on the federal Constitution and restore the constitutional order. But that’s not the only aim. Inclusive of that effort is the goal of shaping the Court’s behavior, providing an incentive to bring itself back within the dictates of the Constitution to forestall Court Reform. This doesn’t mean it’s a bluff. Speaking just for myself but I suspect others as well we should put all our energies into reforming the Court and do so no matter whether or how its behavior changes. But we can’t know the future. We can’t know how quickly robust Democratic majorities can be assembled in its favor. We can’t know whether there will be a Democratic trifecta in 2029. So we are doing both. Because the core driver of the Court’s behavior is the majority’s belief in its own impunity, in the unreviewability of its own actions.