Imagine A Pro-Democracy Supreme Court – If You Can
The United States can't be saved unless SCOTUS is saved first
I find myself imagining a lot these days. Sometimes these are dark imaginings, sometimes full of regret for the future we might have had if we had a major political party committed to democracy.
For now, we don't. But I imagine what it would be like if we did. It's a fun exercise. You should try it.
One thing I like to imagine is if a Democratic president – take your pick of which one – was slapped down by a 9-0 Supreme Court ruling, pretended the Court had sided with him, and had kept on doing the most insanely anti-constitutional shit ever conceived.
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Of course nothing a Democratic president would do could measure up to the all-out assault on constitutional order the Trump regime has undertaken with all the glee of a vitamin D-deficient, porn-brained, blackpilled teenage boy in his mother's basement. But suppose for a moment that the Supreme Court – a captured institution by any measure of the definition – had ruled against Joe Biden's student debt forgiveness program and Biden just said no thanks, we're good. We're going to keep forgiving billion in student debt so Americans who went to college can have a halfway dignified life.
I imagine Clarence Thomas and Sam Alito, with all the directionless rage of your mom and dad poisoning their brains with Fox News 14 hours a day, would immediately lash out. I'm not going to pretend to know how a SCOTUS justice would or could do such a thing, but there is no chance they would keep their mouths shut if a Democrat had given the Court the nah wave. They would holler from any and every rooftop that the end was nigh, that the country had fallen. Folks would have their student loan payments cut in half or eliminated altogether despite the framers never mentioning student loan debt in the United States Constitution. Don't tread on me, things of that nature.
Denny Carter
Alito and Thomas and maybe even the republic-ending John Roberts would do something – maybe write a sternly-worded op-ed in the Wall Street Journal – declaring a full-blown constitutional crisis that can only be solved with the one tool the founders created for such circumstances: Impeachment.
These men, and so far the entire Supreme Court, have remained stunningly silent in the face of an actual constitutional crisis with no clear resolution. The right-wing Court told the Trump regime that it must return Maryland resident Kilmar Abrego-Garcia from the regime's Salvadorian concentration camp and Trump's response was to meet with El Salvador's brutal dictator – the worst millennial alive today – and declare, with the help of avowed white supremacist Stephen Miller, that SCOTUS had ruled unanimously in the regime's favor. It's somehow worse than simply ignoring the ruling; it's twisting the ruling with full knowledge that right-wing media will pick up this new, invented legal reality and convince 50 million Americans that the entire Court had given the A-OK to the kidnapping of an American citizen. I'm sure my dad believes this. Maybe yours does too.
That Roberts and the Court's right-wing hacks have said nothing means the regime can keep abducting their enemies for no reason at all and ship them to an authoritarian's gulag without a shred of due process, a phrase too many Americans are hearing for the first time this week.
Denny Carter
This turn in the Abrego-Garcia case sent me reeling into an imaginary utopia in which Biden had done the right thing – the hard thing – and expanded the Supreme Court, the only way to de-radicalize the most important and powerful institution in the nation. The Court's silence in the wake of Trump ignoring their demands is further proof – as if we needed any – that Thomas and Alito and Roberts and Gorsuch and Kavanaugh will continue to wink and nod and allow Trump to operate as America's first dictator. This has nothing to do with high-minded legal theory: The justices are fine with this because it fits their revolting, retrograde politics.
Their refusal to speak up means the constitution is no longer in effect. Maybe it's been that way since Elon Musk neutered the entire legislative branch with the power of Big Balls.
I wrote way back in December 2022 about an older lady I know who, during the Biden years, began openly talking about the deaths of right-wing Supreme Court justices as the only means out of this fascist spiral. SCOTUS had time and again blocked anything from the Biden administration even resembling progressive policy making. Roberts and his Court had snuffed out any and all efforts to make life in the US slightly better for regular folks. The most economically progressive administration since FDR had precious little to show for its norms-abiding efforts.
In all my imagining, I've tried to conceive of a political future in which a radicalized, anti-constitutional Supreme Court that has deemed Donald Trump a god-king does not stand in the way of re-establishing constitutional order whenever this nightmare ends. I can't imagine it. Whatever the next Democratic president tries to do to untangle the unspeakable mess we're in is going to be shot down by Alito and Thomas and the rest, human backstops for a fascist agenda.
I don't think there's any way around it: The Court has to be expanded. Not only would this instantly and mercifully snuff out the influence of the body's most dangerous members, but it would allow Americans to have a little faith in a key institution. The sweet lady I know who started talking about Alito's health a few years ago could stop engaging in death wishes as a form of politics.
Denny Carter
A reformed Supreme Court with a pro-democracy majority would offer this lady a little hope that power can and will be checked. We could have a branch of the government that jealously and zealously guards its power and would never allow another branch to run wild over constitutional basics. We could have a Court that bravely holds accountable all the vile Trump regime members committing crimes against the republic every hour or every day. We could have a powerful body of law knowers who rebuild and protect the constitution, without which we have nothing but the whims of a mad king with bad posture and a spray tan.
However you might define the Supreme Court we have today, after a stolen SCOTUS seat and a disastrous miscalculation of one old, sick lady, it is by no means pro-democracy. It has done everything in its power to erode democratic self governance, and it will continue to throw body blows at small-d democratic efforts for as long as it is allowed to. There is no limits to the assholes they can be.
With our every political norms burning in a fire that every day rages higher and gets hotter and threatens us all, it has to be time for Democrats to knock down the fascist backstop that is SCOTUS. The Court must be saved or the nation will not be saved. It's something I like to imagine: A Supreme Court in which Sonia Sotomayor is the median justice, not a voice in the constitutional wilderness. Maybe you would too. We need more political imagination, after all.
Follow Denny Carter on Bluesky at @dennycarter.bsky.social.
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