After a few thoroughly depressing posts heralding the End of The American Experiment, I sat down to contemplate how we could possibly survive the sweltering venom of the boiling witches’ brew in Washington, DC.
“Double, double toil and trouble; Fire burn and caldron bubble.”
Unfortunately, in our 21st century American version of a 17th century Shakespearean tragedy set in 11th century Scotland, the three witches have morphed over time into six.
The more I consider both the text and tone of the recent Supreme Court rulings, the more I am convinced that they are mere harbingers of even more partisan incantations yet to come. With each term, the Mad Majority will increasingly envision their spells as being so divinely inspired that any supporting “Constitutional” arguments will be mere afterthoughts.
“By the pricking of my thumbs, something wicked this way comes.”
Indeed.
Okay, perhaps I should move on before my vague Macbeth analogies become…
“…a tale told by an idiot, full of sound and fury, signifying nothing.”
And… NOW I’ll move on.
I’ve been asked why I haven’t devoted multiple posts to the January 6 committee’s work to-date. It’s certainly important, fascinating, and worthy of review. I’d personally like nothing more than to see the immediately former President and his co-conspirators indicted, convicted, and thrown in jail.
But here’s the deal: They are surprisingly not our biggest concern at the moment.
Our immediate focus must be on protecting our democracy by guaranteeing that Americans can freely and fairly elect their own leaders. We cannot allow the Supreme Court and rogue Secretaries of State to put their thumbs on the scale to favor the Republican party in perpetuity. I don’t want them to favor Democrats, either. I just want them to stay the hell out of politics.
So how do we do this? I think there’s a path, but it’s not an easy one.
Several members of Congress and the President have proposed a Senate filibuster carve-out to place abortion protections into law. While well-intentioned, this is a short-sighted approach. It’s extremely doubtful that all 50 Democratic Senators would support this carve-out and, even if passed, a subsequent change to Republican party control would simply see the law repealed. Executive actions protecting medication abortions would seem to be much easier and just as long-lived.
Other members of Congress want a Senate filibuster carve-out to expand the Supreme Court. This is also short-sighted. The Court would need to be expanded from 9 to 13 in order to change the 6-3 Republican majority into a slim 7-6 alternative. It’s even more doubtful that all 50 Democratic Senators would support this carve-out and, even if passed, a subsequent change to Republican party control would simply see the Court expanded yet again from 13 to 17 to restore the Republican advantage.
Any Democratic weakening of the Senate filibuster – even for one carve-out – would without question be answered by a complete elimination of the filibuster whenever Republicans retake majority control. They’ll likely eliminate it anyway, but this would just make it a done deal. Thus, if Democrats are going to tweak the Senate filibuster, they’d better make it damn worthwhile.
My first preference would be to just go ahead and ditch the Senate filibuster altogether. In the worst case, Democrats would have until January 2023 to pass as many laws as they could.
Until just last week, I would never have supported such a drastic measure as I’ve always held onto the notion that the filibuster forced the parties at least try to work together. I’ve now sadly closed the book on that fairytale view of the world.
Unfortunately, Democrats certainly don’t have the 50 Senate votes to completely eliminate the filibuster.
So. What to do? Well, whatever it is, it has to be something that has a prayer of garnering the support of all 50 Democratic Senators. It will have to be a carve-out and I can think of only one that might get the necessary support and be meaningful.
Most high school government students know that there is absolutely nothing in the Constitution that explicitly names the Supreme Court as the final arbiter on questions of constitutionality. In 1803’s Marbury v. Madison, the Supreme Court gave themselves that power and it has been accepted ever since only by mutual agreement.
Was the power of judicial review implied by the Constitution? Sure. But just as the Court has now ruled that the right to privacy doesn’t exist since it wasn’t explicitly written into the Constitution, the concept of judicial review also doesn’t exist. Furthermore, whatever weight might have been given to the long-standing precedent of Marbury v. Madison can now be similarly discounted. See how that works?
While I don’t propose a complete elimination of judicial review, I do propose that we limit it. And I propose that we do it now.
Article III, Section 2 of the Constitution gives the Executive and Legislative branches, acting in concert, the power to strip the Supreme Court of appellate jurisdictions. They can thus declare that specific laws and/or entire issues are beyond the scope of judicial review.
I thus propose a Senate filibuster carve-out to:
- Pass a new version of the Voting Rights Act guaranteeing nationwide voting rights. Versions of this already exist. Pick one that all Democrats can accept. It doesn’t have to be perfect but it should not remotely appear to be partisan.
- Pass a law removing the new Voting Rights Act and all issues related to redistricting from the jurisdiction of the Supreme Court. The upcoming case in North Carolina would be immediately removed from their docket.
To be sure, if Republicans win the Presidency, the Senate, and the House in 2024, they could repeal both laws. But would they? It’d be a tough political sell to repeal a sane Voting Rights Act and an even tougher sell to essentially remove power from state courts.
Could Democrats get all 50 Senators on board with this idea? That’s the tough part. Manchin and Sinema are the most likely to balk, but both might be convinced to support this particular effort purely on the basis of their own political survival. Actually, given the importance, I’d also be in favor of giving them pretty much anything they want. If bribery works, bribery it is.
In any case, if Democrats don’t do something now, their losses in 2024 will be absolutely guaranteed and permanent. It’d be nice if they could just level the playing field and make the 2024 elections a fair fight. Of course, Democrats will still need to get their act together and play offense for a change. Personally, I’d make this swipe at the Court the center of both their 2022 and 2024 campaigns. But that’s a topic for another day.
“Tomorrow, and tomorrow, and tomorrow, …”