But don’t just take my word for it. Consider these sources:
And Moore v Harper is just the latest in a long string of naked assaults on American democracy and the rights of average American citizens, particularly when they conflict with the rights of billionaires and giant corporations.
So, how the hell did we end up here?
Of the six-vote hard-right majority on the Supreme Court, only one of them was appointed by a president who actually won his election (Thomas: Bush Sr.). The other five were appointed by George W. Bush (lost in 2000 by about a half-million votes) and Trump (lost in 2016 by over 3 million votes).
The urgency and ferocity with which they’re ripping our Constitution to shreds seems driven by their knowledge of their own illegitimacy.
Republican appointees across our federal court system are trying to “deconstruct the administrative state” of America, to quote Steve Bannon. Most recently, the majority-Trump-appointed 5th Circuit Court of Appeals ruled this week that the Consumer Financial Protection Bureau’s funding mechanism is unconstitutional. That case will appear at the Supreme Court soon, in all probability.
The most concerning case right now, however, is Moore v Harper which considers the bizarre theory Trump was pushing Pence to accept, that voters don’t determine who becomes president via the Electoral College but that individual state legislatures can simply award their Electoral votes to whichever candidate strikes their fancy.
It’s loosely based on language in the Constitution, but defies two centuries of precedent and turns pretty much every part of elections over to state legislatures with no oversight whatsoever by either governors or the people, and can’t be appealed to any court, including the Supreme Court.
Judge Michael Luttig — the famous and credible conservative judge, the Edmund Burke of this era — has joined the team fighting the potential outcome of this decision.
Luttig suggests this theory, if adopted by the Court, could very well signal the end of Democratic presidents so long as more than 25 of our 50 states have Republican-controlled legislatures (and their governors can’t even veto their legislatures, according to this theory). Today 30 states’ legislatures are fully under GOP control, up from 14 in 2009.
Luttig, the elders among us may remember, personally ran Clarence Thomas’ Supreme Court hearing and worked for years side-by-side with John Roberts in the Reagan Justice Department. He’s friends with both men and is considered one of the top conservative judges in contemporary America.
The “Independent State Legislature theory” at the core of Moore v Harper is, according to Luttig:
“[A]ntithetical to the Framers’ intent, the text, and the Constitution’s fundamental design and architecture.”
But that’s just the beginning of the out-of-control and dangerous behavior of the far-right radicals on today’s court. Since there’s been a conservative majority on the Court it has, among other things:
In just the past year this Court, now stacked with 3 new and deeply unqualified (but young!) hard-right Trump-humping activists, has already ruled to:
That was last year, and apparently it was just a warm-up:
Virtually every one of these decisions are or will be based on the power the Court gave itself to overturn laws passed by Congress and signed by the President in its 1803 Marbury v Madison case.
That case caused such a backlash that the next time the Court ruled on a major constitutional issue was in 1856 with Dred Scott v Sanford, which arguably kicked off the Civil War and President Lincoln refused to recognize.
From the founding of our republic until the post-Reconstruction era, the Court rarely ruled to strike down or modified laws based on their reading of Constitution. Mostly it just did its job as the final court of appeals; after all, the buck has to stop somewhere.
That’s how it’s designed in the Constitution: when different judges disagree or cases go back-and-forth on appeal, the Supreme Court makes the final decision about who wins and who loses.
Back in the early days of the republic the Court was sometimes referred to as the “chickens and dogs court” because so many cases had to do with disputes between farmers (most of America was agricultural at the time).
The idea of deciding cases on the basis of the Constitution was considered exotic or bizarre, and the idea of striking down laws made by Congress and signed by the president was so unthinkable it was only done twice in major cases during the first century of this nation’s history.
When the Court voted in 1803 to give itself the power to claim the Constitution as its excuse to overturn Congress’ laws, then-President Jefferson reflected the outrage of the nation.
There is literally nothing in the Constitution that gives the Supreme Court the exclusive right to decide what the Constitution says or means and impose it on the other two branches of government, or on the rest of America. That is a power the Supreme Court took onto itself in that 1803 decision of its own, Marbury v Madison.
It was such a radical step that it drove then-President Jefferson to declare:
“[O]ur Constitution…has given — according to this opinion — to one of [the three branches of government] alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation…
“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.“
The popular outrage was so intense that, after that 1803 Marbury decision, the Supreme Court only ruled twice between the founding of our nation and the 1860s on a constitutional issue, and in each case both Congress and the president at the time ignored the ruling.
The first was President Andrew Jackson when the Court ruled the Second National Bank was constitutional and Jackson shut it down anyway, claiming it wasn’t. He said:
“The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others… The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”
A generation later, President Abraham Lincoln chose to explicitly ignore the Supreme Court’s expansion of chattel slavery in its 1856 Dred Scott v Sanford decision, as did Congress, and even went on to free enslaved Americans before the Court could weigh in again.
Instead of putting the Supreme Court in charge of American laws, the Framers of the Constitution did the opposite: they put Congress in charge of the Supreme Court.
As they wrote in Article 3, Section 2 of the Constitution:
“[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Republicans know this well. When John Roberts worked as an attorney for Ronald Reagan, he suggested that both Brown v Board and Roe v Wade could be overturned by Congress by simply stripping from the Court the power to decide on issues of race or abortion (as I detail in The Hidden History of the Supreme Court and the Betrayal of America).
Most recently, in the wake of the Obergefell gay marriage decision, Republicans in Congress offered a law stripping from the Court its power to rule that gay people could get married. The Marriage Protection Act, which passed the House of Representatives on July 22, 2004 but failed in the Senate, explicitly says:
“No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.”
While this sort of court-stripping is likely to meet resistance both from Congress and from the Supreme Court, a much easier step is to simply reduce the power of the Court to go off on these wild excursions based on their mind-reading of the Founders.
That could be accomplished by Congress creating an “regulation” for the Court that says all decisions involving Constitutional matters must be decided by consensus (the most strict) or with no fewer than 7 out of 9 notes.
Other options include expanding the size of the Court, term-limiting the Court, or — what FDR had proposed — moving all over-70 justices (Alito, Thomas, and Roberts in 3 years) to “emeritus” status so they can continue to participate in deliberations but lose their vote (or all the emeritus members’ votes are consolidated into one when there’s consensus).
Republicans are already talking out loud about state legislatures legally handing the 2024 election to Trump or DeSantis regardless of who wins, no insurrection necessary this time, because they’re assuming the Court will rule their way.
So, with Moore v Harper and even more toxic and democracy-hobbling or even democracy-destroying decisions coming before the Court, what can we do?
At the very least, Congress should mandate that the Court abide by the same ethics rules that every other federal court and judge must follow, and that all arguments and decisions be televised. This would increase the power of dissenters on the Court and raise the integrity-focusing power of the spotlight of public opinion.
All of these options are within the power of Congress, should it choose to end the filibuster and exercise that power.
Whatever strategy Democratic leadership and the Biden administration choose, America is today in the midst of a severe constitutional crisis and action is needed right now or, at the very least, in the weeks immediately after this November’s election.
If we fail, 2024 may be this nation’s last election for president.