Biden’s Commission on the Supreme Court and Breyer’s Tenure

Drawing by Nathaniel St. Clair

One of the best ways to evade a campaign promise is to appoint a commission. Regarding expanding the Supreme Court, however, Biden skipped the promise and went straight to the evasion. Biden said he would appoint a Very August Body, after the election, to consider whether SCOTUS should be enlarged. Obviously it can and it should. The VAB will also ponder term limits for the justices. Also clearly an excellent idea. But I’m guessing that in both cases, the VAB will conclude otherwise.

Regardless, the GOP will scream about Dems packing the court, when in reality, for those with functioning memories, Mitch McConnell blocked Merrick Garland from even being considered for the Supreme Court, claiming that eight months was too close to an election. But then he flipped around and “confirmed Amy Coney Barrett eight days before an election, when 65 million people had already voted,” as Congressman Adriano Espaillat tweeted. “Court packing is the Republican playbook.” Clearly, it’s time the Dems got with the program.

Originally, back in the eighteenth century when SCOTUS was founded, it had six justices. After the civil war, nine. (There were nine circuit courts then.) We’re long overdue for an expansion. Thirteen would be a good number, since we have 13 circuit courts and besides, if we got four more justices who weren’t absolutely rip-roaring reactionaries like the six in the current majority, we might actually be able to keep laws that congress passed, like the Voting Rights Act and sundry campaign finance laws. Because currently SCOTUS legislates from the bench, and the world it is legislating is a right-wing dystopia.

The high court’s 2013 Shelby v. Holder decision repealed two provisions of the 1965 Voting Rights Act, notably Section 4(b), determining which jurisdictions must get preclearance from the U.S. AG, considering their histories of discrimination. SCOTUS said this was unconstitutional, since it was based on 40-year-old data. But in other contexts, the same majority has said that such temporal vagaries should not be dispositive. In any event, the supremes thus gutted the Voting Rights Act, leading to the current ugly recrudescence of Jim Crow. The high court’s decision (added to Trump bellowing the brazen lie that he lost the election due to fraud) is directly responsible for Georgia’s new voting restrictions, now roiling the nation and for those making their way through the legislative process in Texas. Neither state would have even considered axing so many voters absent Shelby. The Supreme Court has the distinction of single-handedly legislating second place status for Black voters in the American South. That was clearly its intention, which southern state governments perceived and acted on.

Equally abysmal for democracy was SCOTUS’ decision in Citizens United v. FEC, which, as is well known, opened the floodgates for dark corporate money in political campaigns. The fig leaf of impartiality was provided by the court’s disingenuous inclusion of labor unions, who now supposedly have rights to make independent expenditures to campaigns. But of course, anybody with a brain can understand that unions wield nowhere near the financial clout of large, generally reactionary corporations like Koch Industries. Not even close.

So the decision was a bonanza for corporate money and boosted the dubious court fiction that corporations are people and thus entitled to all the benefits of personhood and none of the obligations. This doctrine is pernicious on its face for many reasons, but when applied to campaign finance, it has been catastrophic, vastly leveraging the power of billionaire oligarchs and their hold over government, to the point where the corporate/state relationship has begun to resemble the one associated with the classical definition of fascism. All thanks to the Supreme Court.

In some ways, the court has moved the U.S. to the right of fascism, which coopts labor in the management of production and running the country. But in the U.S., oligarchs don’t even bother to coopt labor. As a result of Citizens United, corporations can give unlimited sums to pick elected officials, with no accountability. Labor isn’t even part of the equation (and as regards production, forget it. Labor is voiceless). Worse, there’s little oversight of any sort. The toothless Federal Elections Commission has been tied up by the GOP, stalled in gridlock for years, due to Mitch McConnell’s outsized influence there. (In 2019, thanks to McConnell, the FEC went without a quorum and thus became unable to enforce election law.)

So SCOTUS jettisoned the campaign finance laws that blocked big business’ control over government. That some of these wealthy corporations now object to GOP state legislatures’ crude voter suppression tactics is nice to see, rather like a falling out among thieves, just as it was encouraging to observe the high court refusing to consider Trump’s flagrantly bogus electoral law suits, but such developments do not curb the country’s overall drift toward what sure looks like fascism. And while it’s comforting that a storm-trooper-style attempt to suppress a successful opposition – as happened on January 6 – failed, the overall outlook for small “d” democracy in the U.S. is so bleak that whatever is embodied in the next GOP presidential candidate – corporate authoritarianism or actual fascism – could arrive before any real democracy does. Welcome to the Weimar years.

Meanwhile, what happened to labor under the supervision of this ultra-reactionary high court? It’s been neutered, because, well, you see, there was Janus v. AFSCME. In that 2018 ruling, SCOTUS crippled unions financially, by banning mandatory fees levied on union non-members – even though those non-members reap the benefits of union representation. This ruling utterly handicaps public sector unions – at whom it was aimed and as it was meant to do. It not only shuts off the revenue spigot, it provides an incentive for workers not to join the union. The fear was that government workers would quit unions, seeing that they can enjoy union benefits without paying for them. Deliberately opaque statistics fog any clear view of whether this has occurred, but such was clearly the ruling’s intent.

In the center of this dreary judicial stage loomed liberal icon Ruth Bader Ginsburg, who tragically and, sad to say, willfully did not take the hint and resign while Obama was president. Because of this error, Trump got to appoint a radical right-wing justice, Barrett. Now, moderate Justice Stephen Breyer has moved center stage. Like Ginsburg, he too is quite elderly, and so there have been calls for him to retire while Biden is president, preferably while the Dems still hold a majority in congress.

Will Breyer do the sensible thing and resign this summer at the end of the court’s term? Or will he succumb to the institutional narcissism that blinded Ginsburg and left the nation saddled with judges whose far-right doctrines the vast, underrepresented majority opposes? If Biden’s commission does not recommend expanding the court and Breyer declines to resign, we have a real problem, namely a tyrannically reactionary majority that legislates from the bench and is intent upon racially remaking the country’s franchise. Those radical right-wing judicial activists will also take every opportunity to further entrench unaccountable corporate power, though they really don’t need to, having already secured that power with few limits, for the foreseeable future.

Eve Ottenberg is a novelist and journalist. Her latest book is Lizard People. She can be reached at her website.