Court Reform priorities for Democrats after the election

Kate Shaw of the University of Pennsylvania has been looking at ways the Congress can reign in real abuses by the judicial branch, and especially by the Roberts Supreme Court, which has been remarkably partisan. As Shaw observes:

It also feels different because this is a precarious moment for American democracy and for the mechanisms of democratic participation — and because it’s impossible to ignore the Supreme Court’s role in creating this instability. In this election cycle, state legislatures have aggressively redrawn congressional districts to maximize their partisan advantage and, in Southern states, to extinguish Black political power; the ultrarich are spending tens of millions of dollars helping to elect their preferred candidates; and the president has sought to radically change the rules for voting by mail, while openly promising voters payouts for helping his party retain control of Congress.

True, the court has rebuffed some of the most egregious efforts at election subversion this year. But it has laid the foundation for the electoral upheaval we are experiencing.

In that essay, she makes the argument that a rogue Court can be a real danger to democracy and the rule of law.

There are still Trump cultists who would surely argue that decisions like the 1954’s Brown v. Board of Education that declared racially segregated public schools to be unconstitutional were illegitimate overreach by the Court. Even though Brown was based on a straightforward reading of the actual language of the 14th Amendment. And, in any case, subsequent Court decision like Milliken v. Bradley (1974) and Parents Involved (2007) have nullified much of the substance of Brown. They also set the stage for Chief Justice Roberts’ majority decision in Shelby County v. Holder (2013), which then laid out the course the rightwing Court took to nullify the Voting Rights Act, which had been renewed in 2006 for 25 years by an overwhelming bipartisan majority in both Houses of Congress and with the backing of then-President George W. Bush. As Kevin Morris wrote earlier this year:

This week [in April 2026], the Supreme Court destroyed what little remained of the Voting Rights Act. In Louisiana v. Callais on Wednesday, the Court eliminated the law’s protections against lawmakers drawing maps that dilute the political power of minority voters. The decision continued more than a decade of the Court’s assaults on what is often called the crown jewel of the civil rights movement.

The opinion’s reasoning is based in part on a claim that is simply not factual. Pointing out that Black and white turnout reached parity in “two of the five most recent Presidential elections,” Justice Samuel Alito assured Americans that racial disparities in voting are no longer a problem. But Alito’s claim represents egregious cherry-picking, as he was not referring to recent elections, but to those in 2008 and 2012 — the years that Barack Obama ran for president. In the three most recent presidential elections, the trend shows exactly the opposite. The indisputable fact is the racial turnout gap is widening, and the Roberts Court is partially responsible. [emphasis added] (1)

Shaw calls attention to the Court’s anti-rule-of-law decisions allowing Trump to break the law in his role as President: “Since it declared presidents all but above the law in Trump v. United States two years ago, the court has created a permission structure for much of President Trump’s second-term lawlessness.”

This is the background in which Democratic majorities in either or both Houses will have to use their Congressional powers to dramatically call attention to the dangerous situation the Court has created through its reliance on the rightwing theory of the Unitary Executive - for which Dick Cheney deserves credit among his many attacks on democracy and the rule of law in his long career. Congress can use its investigative power to highlight and publicize the many abuses of the Trump regime and propose remedies.

Since the Equal Rights Amendment guaranteeing women equal treatment before the law failed to be ratified, Democratic members of Congress seem to have effectively forgotten about the power to amend the Constitution. There have been 27 Amendments since the Constitution first took effect, so they can scarcely be considered a radical new idea. So the Democrats can propose, for instance, a Constitutional Amendment that says straightforwardly that the US President is required to obey the laws of the United States. And they could make sure in demanding it that a large majority of US voters understand that the Republican Party in Congress is overwhelmingly opposed to the idea that the President should obey the law!

Shaw’s editorial and this podcast interview put forward a number of ideas on how the Democrats can highlight the problem of a rogue President whose abuses are being enabled by the very partisan position of the current Republican-dominated Supreme Court. And by the extreme laxity of the oversight of the Court even on serious corruption concerns. One of here suggestions is a dull idea that has been in the Constitution from the start and has been used by the Congress, which is known as “jurisdiction stripping.” While this may sound like a wild-and-crazy concept, it isn’t. And the Supreme Court since the days when John Marshall was its first Chief Justice has explicitly recognized that limitation on its own power.

A quick look at the Supreme Court’s “liberal” reputation

Certainly, from the late 1930s to at least 1980 (the beginning of the Reagan era), the Court had generally been seen as liberal, in both the ideological and in the broad “liberal democracy” (competitive elections and the rule of law) senses. This was not an unbroken record, however. In Korematsu v. United States in 1944, the Court upheld the legality of the race-and-national-ancestry-based imprisonment of Japanese-American citizens during the Second World War, now rightly remembered as one of the Court’s most notorious acts. (2)

Sad to say, the majority opinion and the and a concurring opinion included some of the best-known liberal Justices in the Court’s history: Hugo Black, William Douglas, and Felix Frankfurter. Black had been a literal member of the Ku Klux Klan in 1923-25, so perhaps the ruling was not so surprising from him – and Black was the Justice who formally delivered the opinion. In the 1960s, no Justices were hated by segregationists and Nixon Republicans more than Hugo Black and William Douglas, because of their generally liberal rulings. Except perhaps Earl Warren, Chief Justice from 1953-69, who as Governor of California during the Second World War was an enthusiastic booster for the Japanese-American internment program.

By far the most notorious and destructive Supreme Court decision was the Dred Scott decision of 1957, which had denied freedom to the slave Dred Scott, whose white master had taken him to a free state and argued that therefore he should be considered free. Chief Justice Roger Taney’s majority opinion went even further, declaring explicitly in what is probably the most notorious pronouncement the Court has ever made:

A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States. …

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” [emphasis added]

That decision effectively eliminated the realistic possibility of ending slavery without a civil war. Which is what we got.

Roger Taney, the most infamous Chief Justice of the Supreme Court

There is some bitter irony as well in Taney’s decision. As a young lawyer in Baltimore, he had done pro bono work defending escaped slaves whose masters were seeking to have them returned to bondage. Taney was the brother-in-law of Francis Scott Key, composer of “The Star-Spangled Banner.” He later became Attorney General in Andrew Jackson’s Administration, where his biggest task was to fight to abolish the Bank of the United States, which Jacksonians took as the chief symbol of what they called the Money Power. Although the term “populist” had not yet been invented, that fight was in today’s terms a populist one, in which the Jacksonians claimed – legitimately in this case – to represent “The People” against “The Elite.”

But Taney will forever be remembered as the author of what is still considered the Supreme Court’s most infamous moment, and certainly the one with the most obviously destructive consequences.

Summary: No, the Supreme Court does not have the last say when it comes to defending democracy and the rule of law. It’s a job for all three branches of the federal government - and most of all for the American people whose government it is. Democrats could certainly benefit from recalling Franklin Roosevelt successful fight with the reactionary Supreme Court that was striking down New Deal legislation on the flimsiest of legal justifications.

This post originally appeared in the ProDA-Progressive Caucus of Democrats Abroad Substack.

Notes:

(1) Kevin Morris, Finishing Off Voting Rights Act, Supreme Court Declares Racism Over – Again. Brennan Center 04/30/2026.

(2) David Neiwert’s 2005 book on the internment, Strawberry Days: How Internment Destroyed a Japanese American Community, has recently been republished.