Anyone who has spent time reading this blog knows that I get a lot of my news from other left wing blogs or internet sites. One often needs to exercise a fair amount of judgment reading these sites. The facts are usually accurate but the spin put on those facts is often suspect. One such site is *Politicus USA” a site that tends to put an overly pro-Democratic spin on just about everything. This post, I thought, was just a bit over the top. It passes on generally accurate information about the fact that Republicans are planning to use the Supreme Court to destroy the ACA, something timed to happen after the election, so they won’t be held responsible. Jason Easley, the writer, sums up:
Republicans have engaged in nothing, but an endless series of strategic failures under Donald Trump, and the decision to ram Amy Coney Barrett through the Senate could end up costing them control of the entire federal government.
While Republicans are living for the moment, Democrats are playing the long-game. If they win the election, they can immediately replace the ACA when the Supreme Court kills it. They can make Roe V. Wade the law of the land. They can enact reform to kill Citizens United. The Supreme Court will become a lot less relevant if Democrats control the federal government.
Republicans will get their Supreme Court justice, but Democrats are using their strategic blunder to get control of the unfettered ability to make policy and federal laws for years to come.
Wow. If only any of this were true. Let’s start with paragraph one. If they get Barrett through, they will control the Supreme Court for the next 30 years or so, unless the Democrats increase the number of judges on that court, a move the Republicans will condemn and then copy the next time they have a chance. The Supreme Court is part of the federal government. As our system has developed, it is a fact that if you control the court you can frustrate almost anything remotely progressive.
Paragraph two: This is the very first time that I’ve read anything accusing the Democrats of playing the long game. I suggest Jason read Evil Geniuses, a book I reviewed a while back, to see who has actually been playing the long game. Amy Comey Barrett is the culmination of the Republican long game. They have been grooming legal fascists like her for years, and packing the courts with them in the expectation that they will not need to win elections if they control the courts. We have come to a sorry pass when we can’t even hope that John Roberts, an extreme right winger by any definition, will exercise a “moderating” influence, because even if he joins the rational three once in a while, they’ll still be outnumbered. Democrats, as opposed to long-game Republicans, are reactionaries in a sort of literal sense; they react to what is happening in the moment, but never think long term.
As to the balance of the second paragraph, the Democrats can’t make Roe v. Wade the law of the land unless the Supreme Court lets them. It won’t. The Democrats can’t enact reform to kill Citizens United unless the Supreme Court lets them. It won’t. The Democrats can try to stop voter suppression through legislation that will be unquestionably constitutional to anyone with a passing familiarity with the actual language and intent of the constitution, particularly the post Civil War amendments, but the Supreme Court can protect the suppressors, and it will.
The Supreme Court is yet another institution created by our sainted Founding Fathers that is fundamentally flawed, though you can’t necessarily completely blame Jamie Madison and his compatriots for this one, since the court itself made the determination that it has the power to declare a law unconstitutional. That actually makes a certain amount of sense, but it is obviously a power that can be abused, and it’s a power to which the constitution affords no effective check other than court packing, which obviously presents problems of its own.
The present court is one of the most partisan that has ever existed, and one of the most result oriented. It has exposed, once again, what may ultimately prove to be one of the fatal flaws in the constitution. Those flaws can be rectified only through constitutional amendments, which have become impossible to enact, because the amendment procedure is itself flawed, requiring as it does a super majority of states, without regard to the population of those states. Someone else can do the actual math, but I’d hazard a guess that states comprising less than 20% of the population could frustrate the passage of an amendment passed by states representing the other 80%, and it’s precisely because any amendments would and should make inroads on the ability of the minority to frustrate the majority that amendments will no longer pass.
So far as the Supreme Court is concerned, one obvious solution is to limit the terms of the Supreme Court justices, to stated terms, such as ten years, after which they would have to be reappointed to keep their seat. This is actually how it’s done for all judges in Connecticut, and it works fairly well. It’s rare that a judge is not reappointed, but the fact that he or she must go through the process greatly reduces the possibility that he or she will pervert the law to suit his or her political ends.
All of which brings me to the last paragraph I’ve quoted. The Democrats, should they prevail in three weeks time, will not have “the unfettered ability to make policy and federal laws for years to come”. They will be fettered every inch of the way by one of the three branches of our federal government, a branch they will definitely not control. We will see some judicial opinions so illogical, and so at odds with what was settled precedent, that it will make the heads of lawyers not members of the Federalist Society spin, but that won’t matter. The court will return us to the halcyon days of the Gilded Age, unless the Democrats take the drastic step of packing it.