The Supreme Court Doesn’t Need to Be Reformed. It Needs to Be Abolished.

By Jared Yates Sexton  |  July 12, 2024 | 1:45pm
Photo by Drew Angerer/Getty Images
Supreme Court Democracy
The Supreme Court Doesn’t Need to Be Reformed. It Needs to Be Abolished.

In the whirlwind of the Joe Biden candidacy crisis, you can almost forget that the Supreme Court, in the last month, has gutted the power of the administrative state, laid the groundwork for future restrictive abortion measures, and handed conditional, monarchical immunity to future handpicked presidents. Of course, these rulings have stoked the panic surrounding Biden’s performance and refusal to step aside, creating an underlying and pulsing sense of existential dread, but the Court’s malfeasance is its own crisis entirely. It just so happens to weave throughout every other crisis.

As the Democratic Party continues to stake its destiny to conservatism dressed in progressive clothes while refusing to address the Court’s actions with anything beyond gestures of concern and performative calls for impeachment, the situation grows worse. At Biden’s tightrope NATO presser on Thursday, he namechecked the Court but never even came close to prescribing a remedy. It should be noted that, following the immunity decision in Trump v. United States, the Biden Administration was quick to tell anyone who would listen they respected the institution of the Court and then, in prepared remarks, the best Biden could offer was an assurance that he had no interest in using his new authoritarian powers and voters should reelect him to ensure that he continued not to use them, not even to check the power of the Court. FDR would be ashamed of his party.

This is not tenable. The argument of the unitary executive, sharpened in the putrid Bush Administration who waged an illegal shadow world war that killed millions, was always countered this way. Democrats like Barack Obama and other hopefuls assured supporters that at least they would never abuse the people’s trust. And then the drone strikes started.

To fully grapple with this, it is fundamental that we understand a few things. One, the Supreme Court was designed, along with the rest of the federal government, to advance and protect the interests of the wealth class. The framers believed a camouflaged stratification was necessary to usher in the United States of America and it was also integral to its continued success. Two, with the rare exception of an era like the progressive Warren Court in the mid-20th century, the Court has been an utterly contemptible body that has lied and cheated while gorging on the scraps of the monied class. This Court’s shameless behavior isn’t indicative of it being broken, but working the way it was designed.

Three, the Democratic Party, as presently constituted and ideologically aligned, is way, way more determined to protect the appearance of integrity of our institutions in order to protect the status quo of our systems than it is concerned with the rights, liberties, and protections the Court is systematically destroying.

Elsewhere I have argued that, if the Democrats want to win the 2024 Election and are insistent that they do it with Biden at the helm, the only means of doing so at this juncture is to shift attention away from Biden as a candidate and towards a broad and ambitious agenda that stands in opposition to the wealth class’s Project 2025 proposal and the Court itself. This would be successful politically and it would be the beginning of a solution that has been a long time coming.

Biden and the Democrats would be wise to propose expanding the Court. Meeting a corrupted body head-on with reform possibilities shouldn’t even be controversial, and FDR has already established the precedent. Clarence Thomas and Samuel Alito are obviously bought and sold by wealthy donors and should be hounded from public life. While we’re at it, the lifelong tenures of the Court should be abolished and accompanied by sweeping term-limits throughout government.

But these are also merely half-measures. It’s telling about our staid discourse that these common-sense and even moderate proposals are controversial, as our Court is currently constituted as such thanks to a law from 1869. Plus, the political climate in the United States has shifted significantly rightward, allowing the Republican Party to jump full bore into unadulterated authoritarianism and the Democrats to become the new GOP, extending their umbrella to war criminals like George W. Bush, Dick Cheney, and every outcast from Bill Kristol to David Frum. And so, the Court continues on unchallenged.

The Court shouldn’t just be challenged. It should be abolished.

We find ourselves in this crisis because America has been unwilling to wrestle with the realities of its founding. The mythology around our framers has become so intense as to constitute a cult, a notion bolstered by the GOP and the Evangelical Right’s insistence that they were literally inspired by the Christian God himself. But what they created was a hierarchical, one-party controlled state that served the interest of white, wealthy men while presenting the illusion of representation to a limited few. We have begun to at least reckon with the institution of slavery and the genocide of the indigenous population, but that intentional construction continues to elude consistent and necessary scrutiny.

The minoritarian intentions of our government are easy to see if you know what you’re looking for. The Electoral College is an easy target, and it should also be abolished. The Senate and its elite-serving features were somewhat addressed by the 17th Amendment, but its makeup continues to scuttle democracy and logically it should go too. The Court, however, is the crown jewel of the aristocratic construction, and its destruction would be a remarkable victory for the people.

Packing the Court kicks the can down the road. It is a Band-Aid that should be deployed for triage in the moment lest we sprint down a road we might never return, but that isn’t enough. If the minoritarian and elitist powers unleashed and enshrined by the framers and their Constitution are to be curbed, the only answers lie in broadening the scope of democratic power. We have seen this, with starts and stops, and the most inspiring moments of American history are defined by those wins and reforms.

Already the Court is compromised by its processes. The Senate, itself a minoritarian body, confirms the justices, who have traveled through the most elite schools and institutions their entire lives, being shaped and formed for the future job like priests of the wealth class’s religious dogma. It is a pipeline that ensures we get exactly what we get. And it must be disrupted.

If we are to have a Supreme Court — and there is an argument that we shouldn’t have one at all — it should be ripped free of its foundations and reconstituted as a democratically-accountable body. We already vote for judges. It is notable and damnable that this process breaks off at a certain level.

Would direct election of judges be messy? Absolutely. Would it get strange? You bet. But we already know what we get when we allow the elite to raise up these stewards from crib to the bench, and at least this way we might have a fighting chance. We are told, mostly by Democratic politicians eager to solidify the status quo and quell popular worry, that this current Court represents a departure from the norm. But the Supreme Court has always served the wealth class and white, patriarchal supremacy and all of its poisonous ideologies and interests.

That is the point. It isn’t broken, it’s working how it was designed. That we have to look to the Court and its assembled crooks and cronies and pretend that they aren’t simply fronts for their donors and benefactors is an affront to all of us. That we have to hope this justice or that justice will either survive or perish, or suddenly have a striking change of heart, is more akin to the mystified realities of Feudalism than the promises of democracy.

Of course, this is a radical proposal. You won’t even find actual debates about Court expansion in the halls of power, save for a few gestures and postings. But it is meeting the reality of the situation, as it is and how it should be. And if we continue along this same path, we’ll not only see the progress of the Warren Court utterly vaporized, but the realization of the nightmare that the wealth class has been carefully constructing all along as they have ushered these dutiful servants forward.

 
Join the discussion...