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Not surprisingly, the Supreme Court’s right-wing majority expressed great skepticism at the Biden White House’s debt-relief plan yesterday. What we should note, however, is how the press and opinion-setting conventional wisdom has reacted to that fact. Every reaction I’ve seen sees it as the White House failing, the White House getting its collective knuckles rapped, basically an attempt and a failure. The White House is in a lot of ways complicit in this state of affairs and that traces back to an abiding set of assumptions, ingrained almost beneath the level of conscious thought, that the Court is a legitimate rule-enforcing body which is owed respect and deference and shouldn’t be pulled into the political fray.
That’s a mistake.
The current Court is an illegitimate force in our current public life. It continues to enforce not only doctrines that were long hobby horses in right-wing judicial circles but new and ready-made procedures customized to block any and all policy decisions a Democratic president might choose to pursue. This week, it’s the limits of executive powers. In the brief windows of time when Democrats secure a parliamentary trifecta and pass new legislation, that’s just as suspect. And, as always, it’s relying on a farm team of right-wing legal activists to churn up novel legal theories to choose from.
The AP has an article today which reports that expectant borrowers reacted to yesterday’s testimony with a sense of bafflement and disappointment, hearing bread and butter economic concerns reduced to airy legal language, and the subtext of many of those discussions was that it was bad news not just for those disappointed borrowers but for the President and his party because he couldn’t deliver for his constituents.
This is upside down.
There’s no point griping about the Court’s corruption or its vast assertion of power relative to the legislative and executive branches if the problem isn’t addressed politically, electorally. Yes, in the sullied realm of electoral politics. Hopefully, the President’s plans will be vindicated. But if they’re not, the President and his supporters need to be crystal clear that the problem is the over-mighty and corrupt Supreme Court, and use peoples’ anger and disappointment to build support for clipping its wings. Remove the Court’s authority over certain areas of jurisdiction, add new members to its ranks. There are various solutions. And the specifics aren’t even the point here. Running against the Supreme Court’s corrupt practices and power grabs needs to be central to our politics. Otherwise there’s no explaining to the public at large what the problem is. It’s just “government not working,” which is always toxic to any kind of government activism and indeed civic life itself.
The irony here is that the right spent three generations vilifying the federal judiciary. Now they own it and demand maximal deference and depoliticization. Efforts to change this don’t yield results in a month or a year or even a decade, necessarily. But it’s time to start.
