SoftCell....

The 'soft dictatorship' of this Supreme Court

'This SCOTUS was engineered to be a political sleeper cell,' and it's time to demand its destruction, writes SFGATE columnist Drew Magary

By Drew Magary

The Supreme Court convened last week for its fall term, a prospect that now elicits more dread in the average liberal than 90-degree days in October. 

Because when we last left this Supreme Court, it had abolished affirmative action for college admissions, killed President Joe Biden’s already meager student loan forgiveness plan, gutted the Clean Water Act, and granted a Colorado web designer the right to deny making wedding sites for gay couples, even though the plaintiff in question had never designed a wedding site for ANY couple, and based her case on a request that was allegedly fabricated.

This spree of evildoing came a year after the court infamously overturned Roe v. Wade, striking down national abortion rights and triggering an ongoing witch hunt in red states. Every judgment this court makes feels calibrated — and in some instances, almost certainly IS — to inflict maximum pain on our most vulnerable people.

This fall promises more damage, because the conservative supermajority on the court can use their hand-selected docket to outlaw the abortion pill nationwide, give domestic abusers easier access to firearms, uphold racially gerrymandered congressional maps, neuter the Consumer Federal Protection Bureau and let conservative states regulate social media instead of letting the companies that own those networks do so themselves. And no one will stop the supermajority when they do.

The Supreme Court can do anything it pleases. We discovered as much this spring when ProPublica unleashed a series of damning reports about Justice Clarence Thomas getting pampered and demonstrably influenced by the richest conservative donors this country has to offer. Thomas wasn’t disciplined for his transgressions, because there isn’t any governmental infrastructure TO discipline rogue SCOTUS justices. The only recourse our legislative branch has is to impeach justices, something that has happened a grand total of one time, in 1804. Just like twice-impeached Donald Trump, the Senate acquitted Associate Justice Samuel Chase anyway, making his ouster ceremonial rather than definitive.

It is neither novel nor revealing to tell you that this is bulls—t. This court is no longer a legitimate legal entity, but rather the most powerful and destructive political force of my lifetime, and likely yours as well. It has about as much respect for the law as it does for marginalized groups, and it must be greeted with anger, disdain and public contempt. 

This SCOTUS was engineered to be a political sleeper cell. It is the crowning achievement of an effort the Federalist Society undertook 40 years ago to ensure that, should conservatism ever lose momentum in this country (as it has), and the Republican Party fall into comical disrepair (as it is doing right now), that the Supreme Court could still advance the most inhumane goals of the conservative agenda — forced births, curtailed voting rights, a gun in every school lunchbox — without other parts of government getting in the way. After all, it’s far more convenient and more effective to rule by judicial fiat than bothering with the whole “representative democracy” thing.

You and I are now bearing the cost of that worldview. This is a soft dictatorship transparently shrouded in terse legalese, and it could potentially nullify whatever electoral progress Democrats make in the coming years — decades, even. The idea that SCOTUS was a reliably objective body put in place to act as a guardrail on the other two branches of the federal government was always something of an illusion, but the Federalist Society’s Supreme Court no longer bothers with the pretense of sober jurisprudence.

As 303 Creative v. Elenis (that’s the idiot Colorado web designer’s case) proved, SCOTUS doesn’t take up cases that it cannot use to suit its donors’ ends. Legal nuance is of no concern, only political efficacy. In a macro sense, this isn’t a legal body at all, and doesn’t deserve to be treated as such. 

This is why a vast majority of Americans disapprove of the Supreme Court, because they know its origins, its motives and its inherent corruption. For the moment, neither Joe Biden nor some of our oldest, most intransigent Democratic senators (RIP Dianne Feinstein) are inclined to do anything of substance about the court, save for making the justices sign a pledge to be nicer that Samuel Alito will wipe his ass with. And while the legacy media has joined ProPublica in outlining the ethical lapses that are a defining feature of this court, they still lean toward treating it with the kind deference it long ago ceased to merit. From the Washington Post last week:

“After its seismic 2022 decision in Dobbs, the court last term seemed to search sometimes for middle ground,” the Post reported. And: ‘“While the court in its final decisions showed again that it is one of the more conservative courts in history, the term ended without the vitriol and barricades that we saw in the wake of Dobbs,’ said Gregory G. Garre, a Supreme Court practitioner who served as solicitor general under President George W. Bush.”

Bullshit. Pure, uncut bullshit. If this SCOTUS ever makes a good decision, it’s only “good” relative to the monstrous judgments it now hands down as a matter of routine. Do you know how s—ty this all feels? Do you know how badly it sucks to live in a country where anything your elected representatives do can be wiped out in an instant by nine tenured s—tbags who have zero meaningful oversight and know it? 

Take all the political issues that you care about at the moment: health care, gun violence, immigration, education, civil rights, voting rights, crime (rolled eyes emoji), abortion, etc. All of it — ALL OF IT — must pass through this awful court’s filter before it can be changed. This means that the court itself must be changed. I and other progressives have already hassled every Democrat about expanding the court, packing the court, instituting term limits and other fixes that any neutral observer would tell you should have been put in place the day this nation was founded. Establishment Democrats have said NO to these proposals, often in the most tortured, Democratty language possible. 

But there are signs that their obdurate behavior can be breached. Last week’s ouster of House Speaker Kevin McCarthy represented a rare moment where Democrats collectively stunted on the Republican Party. McCarthy kept the government open by making a deal with the opposition, and when a rebel chode faction led by Florida Rep. Matt Gaetz moved to boot him, Democrats then unanimously voted to kick McCarthy to the curb. 

Usually, I only see Democrats exhibit this kind of ruthlessness toward their own kind. But somehow, some way, they actually treated the Republican party’s most cynical operatives with the open contempt they have always deserved. 

Who knows how long this newly, strangely emboldened Democratic Party will last. Now is the time for their constituents — that’s you and me — to demand they press their advantage. Make SCOTUS your only political issue this coming election year. Don’t let Biden, or Dicky Durbin, or any other fossil off the hook. Don’t let them wave off SCOTUS reform as a pipe dream, a cause that isn’t worth pursuing. 

Right now, it’s the ONLY cause worth pursuing. Make that fact plain to your elected leaders. The right-wing overthrew this court with patience and persistence (and money), and so can you. Turn the judiciary into an overwhelming ballot issue. Threaten to primary those who refuse, and threaten it loudly. These are politicians, after all. Unlike SCOTUS justices, they have to answer to voters. After last week, it appears that some of them have remembered as much.

Because this is how progress is made. Leaders will always say no to everything until they have no choice but to say yes. It happened with gay marriage. It happened with weed reform. It can happen with SCOTUS, too. 

The momentum is there, but only if you stay angry. Given this court’s pattern of behavior, that shouldn’t be hard for you to do. Don’t treat these judges with respect, and don’t allow our elected representatives to treat them with respect, either. Tell those reps that this court isn’t legitimate. It’s vile, evil and must be destroyed. Never stop saying it to them.