There’s little question that Trump could, if someone around him demonstrates a modicum of competence in government, be a threat to democracy, whether by malevolence, ignorance or inconvenience. After all, insurrections are hardly the sort of thing that happens in a democracy when the election doesn’t go your way. But Trump’s ham-handed governance isn’t the only threat, even if it’s the most obvious because he lacks the capacity to conceal it behind rational rhetoric.
The other greatest threat to democracy is presented by two Harvard law profs of dubious renown and worse credibilty. No, not Larry Tribe. I guess “Harvard law prof” isn’t sufficient to narrow it down anymore. But I digress.
As Nikolas Bowie and Daphna Renan explain in the New York Times, it’s time for Congress to seize control of the Constitution from the Supreme Court. This strikes me as surprising given that could turn Marjorie Taylor Greene into a constitutional scholar, perhaps on the Equal Protection Clauses with regard to Jewish space lasers. But I digress again.
Today even Americans who decry these opinions largely accept the idea that the court should have the final say on what the Constitution means. But this idea of judicial supremacy has long been challenged. And the court’s immunity decision has set in motion an important effort in Congress to reassert the power of the legislative branch to reject the court’s interpretations of the Constitution and enact its own.
“Make no mistake about it: We have a very strong argument that Congress by statute can undo what the Supreme Court does,” Chuck Schumer, the Senate majority leader, said recently as he announced the introduction of the No Kings Act. The measure declares that it is Congress’s constitutional judgment that no president is immune from the criminal laws of the United States. It would strip the Supreme Court of jurisdiction to declare the No Kings Act unconstitutional. Any criminal actions against a president would be left in the hands of the lower federal courts. And these courts would be required to adopt a presumption that the No Kings Act is constitutional.
Do you ever get that feeling to yell “cite?” after every sentence because, sentence by sentence, it’s absolutely batshit crazy and utterly without basis in reality? Like most people with any knowledge of law, the Supreme Court’s opinion in United States v. Trump was not good. The extent of bad is a normative matter, with the crazy fringe claiming it turns the president into a king. No, it doesn’t. Being a bad decision doesn’t mean you have to shriek the stupidest possible criticism and go so far over the edge that you’ve fallen into the abyss.
But when your tribe has lost control of the Court majority (which is unfair, as the left wing hasn’t really had control of the Court since Earl Warren was Chief Justice and Wild Bill Douglas was putting whoopee cushions on the bench seats. Oh crap, I digressed again.), the “I stand for democracy” team doesn’t get to ditch the tripartite system of government and turn the most political branch, the one that ebbs and flows with every breeze of popular idiocy, into the least dangerous branch. There’s a really cool reason the founders came up with separation of powers, and it’s to stop megalomaniacs on either end, the presidency or the legislature, from ramming their singularly extreme agenda down a nation’s throat.
But what did Mitch McConnell do when he denied Merrick Garland a hearing using the bullshit excuse of the last year of Obama’s presidency? He outmaneuvered the Dems and violated the public trust, even if he beat the spirit of the Constitution to a pulp. The fix was denying his guy the vote, but that didn’t happen so McConnell got away with it.
What the solution is not, however, is devolving into the most moronic sophistry to ever come out of Harvard Law School, which is a very high hurdle indeed.
Though the court has declared itself supreme in constitutional interpretation, the only thing the Constitution explicitly allows the Supreme Court to do is exercise “the judicial power.” The Constitution does not define this phrase. Nor does anything about the phrase inherently give judges the power to review acts of Congress.
If that depth of legal reasoning doesn’t make you want to send your progeny to Harvard Law, nothing will. Nuts, I did it again.
Critics of these sorts of measures have charged Congress with attempting to allow a tyrannical majority to ignore the Constitution. They argue that the Supreme Court’s power to substitute its own interpretation of the Constitution over that of a law passed by Congress and signed by the president is essential for protecting political and racial minorities.
But the history of the court’s power proves otherwise.
The grievance is that the Supreme Court hasn’t always ruled the way Bowie and Renan, not to mention Schumer, want it to, apparently oblivious to the fact that from 2017 to 2019, Republicans held the majority in the House and Senate while Trump sat in the Oval Office. By what delusion do they assume their tyrannical majority would invariably prevail over the other team’s tyrannical majority?
At least Trump comes by his destruction of democracy honestly, through monumental ignorance of law and governance, and his refusal to abide anything that doesn’t serve his self-interest. It’s no less the destruction of democracy to call for the arrogation of our system of government for what they believe to be salutary rather than malevolent purposes. Wrapping it up in a woke bow doesn’t make it any less destructive of democracy where a Supreme Court, for better or worse, fulfills its constitutional duty in our tripartite system of government. And this time, I didn’t digress.