Autocrats Are Hiding Behind the Robes of Justice
The Supreme Court is simultaneously the least democratic institution of our three branches of government and the final bulwark tasked with protecting our democracy. It plays a deeply contradictory and essential role, which depends on maintaining an increasingly fragile legitimacy.
The storm of decisions that have come down from the Supreme Court this term has ripped the thin veneer of “objectivity” or “nonpartisanship” that protects that fragile legitimacy, and it has created a crisis for the Supreme Court and the country. The Court has encouraged excessive court interference and litigious bottlenecks to governing that undermines independent public administration.
It has created blanket presidential immunity for any and all criminal actions that arguably were taken as part of the president’s constitutionally prescribed role. And the Supreme Court has shattered basic rights allowing criminalization of poverty and lack of housing with the stunning fiction that our homelessness crisis was not clearly involuntary.
From redistricting lawsuits to challenges to the Voting Rights Act, the Supreme Court often plays a critical role in determining the fate of voting and election cases.
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Through the cumulative effect of this term’s decisions, the Court has affirmed an anti-democratic framework for authoritarians that will undermine freedom, erase even the pretense of equality and spur state-sanctioned abuse of the American people.
Our democracy has always been imperfect, founded on racial, class and gender hierarchy. But it offers foundational ideals that allowed people’s movements to fight for the promise of an ever-perfect union. This legal attack against democracy challenges those basic ideals and is driven by a highly racialized backlash that includes calls for massive deportation, increased criminalization, intensifying voter suppression and even efforts to ban conversation about racial equity. Racism is not only the elephant in the room; it is the elephant trampling democracy.
Our country has faced critical crises in the past in moments of great injustice. In those moments, the Supreme Court has always played a key role, sometimes as a hindrance and sometimes as a champion for justice. During the New Deal Era, when grave economic suffering blanketed the country after a period of great wealth concentration not unlike today, the Supreme Court initially blocked essential legislation to help the country course correct.
Our stark choice at this moment is between maintaining this illegitimate Supreme Court and preserving our democratic traditions.
As FDR was working to increase the number of justices on the Court, Justice Owen Roberts shifted his vote to allow the New Deal to go forward. This is known in law schools across the country as the switch in time that saved nine.
President Joe Biden is echoing history with his proposal for 18-year term limits, reversing the current stance on presidential immunity and creating a reasonable binding code of ethics. Even if this crisis is temporarily abated by shifting opinions on this Supreme Court, all aspects of Biden’s proposal would make our government more democratic and accountable.
Given that the Supreme Court is no longer the defender of democracy, our stark choice at this moment is between maintaining this illegitimate Supreme Court and preserving our democratic traditions.
We have no choice as a country but to meet the moment and take required bold action to ensure our institutions meet the mandate they were given. In terms of basic rights, democracy, equity and justice, we need these serious reforms and interrogation of our current Supreme Court.
Cathy Albisa is the vice president of Institutional and Sectoral Change at Race Forward.