THE SUPREME COURT’S THREATS TO OUR DEMOCRACY AND HOW TO FIGHT BACK

Based on the recent decisions by the Supreme Court’s six radical, reactionary justices, we should all be in the streets protesting. Their decisions undermine the Constitution and our system of government. For those of us who want to keep our democracy, we need to fight back and protest in whatever ways we can, starting with getting out to vote and voting for every office on your ballot in every election.

(Note: If you find my posts too long to read on occasion, please just skim the bolded portions. Thanks for reading my blog!)

Based on the recent decisions by the Supreme Court’s six radical, reactionary justices, we should all be in the streets protesting. Their recent decisions undermine the Constitution and our system of government. Their presidential immunity decision violates the principle that everyone is subject to the rule of law (see this previous post for more details).

In addition, in late June, the Supreme Court’s six radical, reactionary justices, in their Loper Bright Enterprises v. Raimondo decision, overturned a 40-year-old Supreme Court precedent and over 200 years of precedent in practice. They ruled that the courts should not defer to the expertise of federal executive branch agencies on the details of the implementation of laws. [1]

The authority of executive branch agencies to make the detailed decisions necessary to implement laws had been the practice and core of our system of government for over 200 years. It was upheld and formalized by the Supreme Court in 1984 in a case that established the so-called “Chevron doctrine,” which said that the court system should defer to executive branch agencies’ expertise in interpreting and implementing laws. That decision reflected the Court’s belief and understanding from the Constitution that policy decisions should be responsive to the voters and their elected representatives, not made by unelected federal judges with lifetime appointments. Therefore, policy decisions should be in the hands of the president, the head of the executive branch and its agencies, and Congress, which writes the laws.

Based on the Court’s Loper Bright ruling, federal judges now have the power to determine the interpretation and implementation of laws. This means that agencies’ expertise and process in establishing rules and regulations can now be superseded by the courts. This takes crucial decision making out of the hands of experts and scientists at federal agencies and hands it to federal judges. Judges don’t have the expertise to make these decisions. The roughly 800 judges that make up the federal judicial system have widely varied philosophical and ideological views that mean there will be contradictory rulings that will create confusion and even chaos in the court system and in our economy and society. Furthermore, the workload of reviewing challenges to the thousands of decisions that executive branch agencies make in implementing laws is likely to bog down and maybe overwhelm the court system. Even Congress does not have the capacity to micromanage the implementation of the laws it passes, so it leaves this work to the fourteen executive branch agencies, their over 1 million employees, and their expertise. (The Department of Defense is the fifteenth executive branch agency and has over 3 million employees, but has less of a role in establishing rules and regulations that affect civilian society.)

The door is now open for court challenges to rules and regulations on, for example, public safety, public health, and environmental protection, such as protecting the public from pollution, unsafe and contaminated food, and unsafe working conditions. The approval of drugs and the regulation of drug prices are now susceptible to court challenges. The details of safety standards for aircraft construction and air travel, as well as the detailed regulations of financial instruments and institutions are now subject to court review. The federal requirements for services for children with special needs can now be challenged in the courts. And on and on and on. Some expert legal observers are worried that a likely plethora of challenges to rules and regulations could lead to legal and administrative chaos in the federal judiciary and regulatory agencies.

An important effect of these recent Supreme Court decisions by the six radical, reactionary justices is that more power has been arrogated to the court system and ultimately to the Supreme Court. In the Loper Bright case it’s power over rules and regulations and in the presidential immunity case, the courts will now decide which presidential acts are immune official acts, which aren’t, and what evidence can be used in a trial. Note that these rulings have created a strong president at the head of the executive branch but weak executive branch agencies. This is just another contradiction in the dramatic lack of coherence in the Court’s decisions.

The six radical, reactionary Supreme Court justices are not behaving as good-faith players in a constitutional democracy. They have overturned the balance of power among the three branches of government established by the Constitution, undermined its checks and balances, and made the courts (i.e., themselves) the supreme rulers and the ultimate arbiters of all legislative and executive branch decisions.

For those of us who want a democracy, with government of, by, and for the people, operating under the rule of law, rather than an authoritarian government overseen by an imperial president and an all-powerful cadre of six radical Supreme Court justices, we need to fight back and protest in whatever ways we can: [2]

·         Write letters to the editor, post on social media, call in to talk shows on the radio, etc.,

·         Talk with family, friends, colleagues, and neighbors,

·         Participate in local events and demonstrations,

·         Donate money to good organizations and candidates,

·         Volunteer in local government and local organizations,

·         Engage in local government and politics, perhaps even run for an elected position, and

·         Most of all, get out and vote and get everyone you know to do so as well.

On this last point, getting out to vote, I encourage you to vote for every office on your ballot in every election. In addition to federal offices, state and local elections and offices matter greatly. They affect your everyday life, your local schools, and the well-being of everyone in your local community. They also are the proving ground and pipeline for candidates for higher offices. I painfully note (as someone who was a proud independent until the days of President Reagan and who viewed local elections as non-partisan until 20 years ago) that the Republican Party, at least everywhere that I can see, has become the party of Trump and authoritarianism, of the wealthy, and of the large corporations. Therefore, I encourage you to scrutinize any Republican you might vote for very carefully, and, when in doubt, to vote for Democrats – all the way down the ballot to your local offices. (For more on the importance of “down ballot” races, see this blog post from Robert Hubbell.)

Democrats need to be in control of Congress and the presidency so the Supreme Court can be reformed. It clearly needs enforceable ethics rules. Perhaps most importantly, the Court needs to be expanded to counteract the two seats that were stolen by Republicans and have given the radical, reactionary justices control. There are other reforms that should be considered, such as term limits. See this previous post for some options for reforming the Supreme Court.

[1]      Turrentine, J., 6/28/24, “The Supreme Court ends Chevron deference – What now?” Natural Resources Defense Council (https://www.nrdc.org/stories/what-happens-if-supreme-court-ends-chevron-deference)

[2]      Pepper, D., 2023, “Saving democracy: A user’s manual for every American,” St. Helena Press, Cincinnati, Ohio.