How the Democrats need to go about fighting a rogue reactionary Supreme Court

Dahlia Lithwick and Mark Joseph Stern warned in November 2024 that the outrageous Roberts Court decision basically exempted the President from the requirement to follow the law in its Trump v. United States decision of 2024. And that it would allow the Trumpists to put the pedal to the metal on its authoritarian project to destroy American democracy, which they accurately described as follows:

[O]n arguably the big issue, what presidential power actually means, Trump couldn’t be clearer: He believes the president is an elected authoritarian who can and indeed should concentrate all state power within himself and wield it to achieve his own personal ambitions and retributions. There is no daylight between his own selfish interests and the state’s needs, because to his mind, he is the state. And he is forever immune from punishment when he chooses to corruptly manipulate the tools of his office to punish his enemies and reward his friends. He is the state, but he is also the law. [my emphasis] (1)

The Democrats have to be aggressive on restoring the rule of law, which of course is intimately connected to the massive corruption of the current regime that the Democrats have to push back against aggressively, now and for the years after Trump is out of power.

David Sirota wrote in 2022 about one of the worst historical “lessons” that came out of Franklin Roosvelt’s successful fight against the blatantly partisan, anti-New Deal Supreme Court, which is often referred to as Roosevelt’s “court-packing” scheme and is commonly cited as a failure on FDR’s part, which is almost the opposite of true:

Public support for Roosevelt’s expansion initiative only truly cratered when the court’s conservative majority suddenly halted its attempts to block the New Deal. In particular, the court’s surprising decisions to uphold a state minimum wage and then the pro-union Wagner Act deflated public support for court expansion, as did the subsequent retirement of one of the court’s most conservative justices. The court soon after declined to block Social Security.

“Evidence accumulated over the years goes against that notion of the (close) relationship between the public and the court,” wrote Caldiera. “I prefer, instead, a much more straightforward account: The Supreme Court outmaneuvered the president. Through a series of shrewd moves, the court put President Roosevelt in the position of arguing for a radical reform on the slimmest of justifications.”

But here’s the key point: He notes that the court’s “shrewd moves” that “outmaneuvered” FDR were in practice “an important jurisprudential retreat” on policy.

“President Roosevelt in essence offered the Supreme Court a choice between substantive policy and structural integrity,” he concludes. “The court wisely chose to give up on the substantive issues and preserve its structural integrity.” (2)

Norm Ornstein and David Rothkopf recently held a very informative discussion about what will be required of the Democrats on both policy and politics to undo the massive damage John Roberts and Donald Trump have done to the basic functioning of the legal system in the US, with the title “The One and Only Way to Truly Defeat the Trump Crime Family”: (3)

Notes:

(1) Lithwick, Dahlia and Stern, Mark Joseph (2024): The One Reason a Second Trump Presidency Would Be So Much Worse. Slate 11/04/2024. <https://slate.com/news-and-politics/2024/11/2016-election-supreme-court-helps-trump.html> (Accessed: 2026-31-05).

(2) Sirota, David (2022): FDR’s Lesson About The Supreme Court Rampage. The Lever 07/08/2022. <https://www.levernews.com/fdrs-lesson-about-the-supreme-court-rampage/> (Accessed: 2026-31-05).

(3) The One and Only Way to Truly Defeat the Trump Crime Family. The DSR Network YouTube channel. <https://youtu.be/ViLgo5ivXCw?si=WFtya2Bv6za-l65-> (Accessed: 2026-31-05).

Trump v. New York and Republican voter suppression efforts

David Gans flags the case of Trump v. New York currently being argued before the Supreme Court as a real-world test of how serious the SCOTUS conservatives (or rightwing radicals) are about their "originalist" view of Constitutional interpretation.

As he puts it, "Trump v. New York poses a basic test of constitutional fidelity to long settled constitutional principles at the core of our democracy. If Justice Amy Coney Barrett and the Supreme Court’s conservative originalists fail this test, it will go a long way to defining the Roberts court going forward."

This case involves the national census and Trump's argument that people "who are not in a lawful immigration status" should not be counted. This is a transparent attempt to reduce Congressional representation for states like New York and California who have large Latino immigrant populations.

Gans explains just how clear and explicit the background of the Constitutional provisions affecting the census and the Congressional history of their passage are on the idea that everyone should be included in the census count.

The SCOTUSblog has a number of articles on the case listed here. Nina Perales in her 11/28/2020 contribution to Symposium: A not-at-all disguised attempt to shift power away from Latino voters explains that - not surprisingly for the Trump-Pence Administration - the parameters for defining who falls outside the Trumpian parameters for being counted. Their approach is directed by what is known as "the apportionment memorandum." which Perales argues is straight-up illegal. :

... the apportionment memorandum excludes individuals who, although lacking the rights of U.S. citizens and authorized immigrants, are undoubtedly “whole persons” living in the United States. In this way, the memorandum raises the specter of the infamous three-fifths rule, under which our Constitution – prior to the 14th Amendment – mandated that enslaved persons be counted as three-fifths of free individuals for the purposes of congressional apportionment, thus increasing the political power of slavery states.

The apportionment memorandum not only illegally excludes immigrants living in the country without authorization from the apportionment count, it uses them as the stalking horses to mask its nakedly political goal – to reduce representation in Congress, and the Electoral College, of all the people living in states with the largest Latino populations.

Draped in the language of immigration enforcement (the apportionment memorandum talks about individuals “who are not in a lawful immigration status” and promoting “respect for the law”), the memorandum singles out California and asserts that its residents should properly lose “two or three” congressional seats. When California loses “two or three” congressional seats, many millions of not undocumented people also lose representation. [my emphasis]

In calling it Trumpian, though, we shouldn't forget that this is part of the larger Republican Party program of voter suppression and discrimination against non-white citizens and resident. In 2020, Trumpism is the Republican Party.

in her Argument Analysis of 11/30/2020 on the SCOTUS oral arguments this week, Amy Howe gives us an insight into some of the arguments being made.

The Supreme Court vacancy, the Democratic Party, and asymmetric partisan polarization

Asymmetric partisan polarization is one of the most prominent defining characteristics of American politics. The Republicans fight for their positions - and court appointments! - and trample on precedent, decency, and the law to attain their ends. The Democrats keep seeking "bipartisan" cooperation with a continually radicalizing Republicans Party, hoping despite decades of evidence that "the fever will break" in the Republican Party.

After at least 30 years of this pattern, the Republicans are on the verge of establishing a Hungary-style "Orbanist" post-democracy controlled by the Republicans and the favorite oligarchs.

Here's an example from earlier this year on how this works. Chuck Schumer, Senate Minority leader, made a clumsily-worded statement reminding the two Trump-appointed Justices, Neil Gorsuch and the particularly odious Brett Kavanaugh, that they should respect the Roe v. Wade precedent on abortion rights. Republican Chief Justice John Roberts, a George W. Bush appointee, publicly scolded Schumer for his comments. And he, of course, meekly backed down. (Andrew Desiderio, Schumer walks back SCOTUS comments after Roberts rebuke Politico 03/05/2020)

Here's how the Republicans went on the attack against Schumer, for a comment that for Mitch McConnell would have just been "Tuesday" and for which McConnell himself would have doubled down and flatly refuse to retract if he had been in Schumer's position:

Schumer’s remarks [apologizing] came after Senate Majority Leader Mitch McConnell on Thursday accused him of trying to “bully our nation’s independent judiciary,” a day after Roberts condemned Schumer for “threatening” the two justices. ...

In a scathing address from the Senate floor, McConnell (R-Ky.) also attacked the Democratic Party as a whole, accusing lawmakers of undermining and threatening U.S. institutions. He said Schumer’s comments were “astonishingly reckless and completely irresponsible.”

“He literally directed the statement to the justices, by name,” McConnell said. “The minority leader of the United States Senate threatened two associate justices of the U.S. Supreme Court. Period.” ...

For more than 15 minutes, McConnell laid into Schumer and portrayed the New York Democrat’s comments as a wider problem among the progressive movement. He accused Democrats of “rampant” anti-institutionalist rhetoric and said Democrats “appear more interested in attacking the institutions of our government than in working within them.”

“As long as this majority holds the gavel, we will never let the minority leader’s dangerous views become policy,” McConnell said. “This majority will ensure the only casualties of this recklessness are the reputations of those who engage in it.”

McConnell’s fellow Republicans were also piling on, taking to the Senate floor and social media to harangue Schumer and urge him to apologize. President Donald Trump, too, took to Twitter on Wednesday night to criticize Schumer for a “direct and dangerous threat” against the Supreme Court.

The point of relating that story is not to say that Schumer's original comment was beyond criticism, but rather to show how the asymmetric partisan polarization works. Republican leaders say the most outrageous things without apologizing and then double-down when criticized for it and whine that the mean Dem-u-crat Party is pickin' on them.

Democrats rush to surrender and let their actual message get quickl flushed down the memory hole.

A Democratic leader more willing than Chuck Schumer to fight the Republicans could have easily responded along the lines of, "Of course what I was saying was that Gorsuch and Kavanaugh would pay a price in their reputations if they disregard precedent on Roe v. Wade. Abortion rights are a critical part of women's rights and, yes, I defend that and I expect all the Democrats in the Senate to defend it. And since Justice Roberts took the unusually partisan step of criticizing my remarks, I'll add that his disgraceful rulings in the Citizens United case allowing a flood of private money to buy elections, and his support of striking down the Voting Rights Act which greenlighted the Republican voter-suppression we now see ballooning across the country, will be a blot on his reputation for the next two centuries."

It's easy to imagine that kind of response, because the Republicans play that game all the time. And they achieve two things by doing so. One is that the propel their political message. The other is that they show the public and their voting base that they fight for their own side.

Now with Ruth Bader Ginsburg's passing, the Republicans remind us again how completely shameless they are. After piously insisting they were respecting the electorate while flatly refusing to even hold hearings on Obama's last Supreme Court nominee, they are now smugly insisting that it's absolutely critical to approve another Neanderthal Trump nominee immediately and insisting that there's not the slightest inconsistency from their previous position.

The single most important thing they do for themselves with that approach is to signal dramatically to their base voters, "We're fighting for our side." Bunker Boy even upped the ante on Saturday by saying of Joe Biden, "You can't have this guy as your president. You can't have — maybe I'll sign an executive order, you cannot have him as your president." (Tommy Beer, Trump Threatens To Issue Executive Order Preventing Biden From Being Elected President Forbes 09/20/2020

In the current situtation, I see it as absolutely critical for the Democrats to block any Trump Supreme Court appointment until after Inauguration Day. Chuck Schumer has got to pull out every procedural obstruction that exists and invent some new ones if that's not enough. Nancy Pelosi also needs to do everything she can to block it as well. Impeaching one Cabinet Secretary or Trump family member per day from now until as long as it takes and demanding that the Senate take immediate action on them is one of several attractive options. Actually, the House should have been holding impeachment hearings on Clarence Thomas 20 years ago!

And I know that Republican-level message discipline is to Democrats what green kryptonite is to Superman and his Kryptonian relatives. But they need to do it this time! No Democrat should be on TV for any reason without saying, "It's a disgrace that the Republican hypocrites are trying to ram through a Supreme Court Justice and anyway [whoever the nominee turns out to be] isn't fit to serve as a county clerk, much less a Supreme Court Justice. And we're also going to impeach that rapist thug Brett Cavanaugh!"

The Trumpistas surely have more than one plan to get the Presidential election results in front ofe the Supreme Court to get a Bush v. Gore II blessing for stealing the election. And Snapping Turtle Mitch McConnell will jam a nomination through in a couple of weeks if the Democrats don't block him. We're only about eight weeks out from SCOTUS having a shot at handing down a death-blow-to-democracy Dred Scott type decision. The Democrats cannot afford to screw this one up.

Anne Applebaum made a suggestion on Twitter that I see mainly as a reflection of how accustomed everyone has become to the situation of: Republicans fight, Democrats surrender.

The link to her full article is here: If You Care About the Court, Don't Talk About It Atlantic 09/20/2020. Applebaum has important insights on history and politics. And she's going through an interesting process of re-evaluating the assumption of post-1989 Cold War triumphalism. But a don't-fight-for-your-own-side in American politics in 2020 is pretty much identical to: surrender to the Republicans.

The Democratic Presidential nominee Joe Biden addressed the Court vacancy in a Philadelphia speech Saturday. Allan Smith reports ('Constitutional abuse': Biden challenges Senate Republicans in blistering Supreme Court speech NBC News 09/20/2020):

"To jam this nomination through the Senate is just an exercise in raw political power," Biden said. "I don't believe the people of this nation will stand for it."

The immediate question, though, is how much hell the Democrats will raise to block it.

Biden said that should Trump submit a nominee, the Senate should not act until the election is resolved.

"If Donald Trump wins the election — then the Senate should move on his selection and weigh that nominee fairly," Biden said. "But if I win the election, President Trump's nomination should be withdrawn."

The only sentence Biden should be using before that election that begins with, ""If Donald Trump wins the election" should be one describing the horrible results of such an outcome.

He called on Senate Republicans to help "de-escalate" tensions and to follow their "conscience," saying they should "cool the flames that have been engulfing our country."

This is just another version of the-fever-will-break-talk that pretends asymmetric partisan polarization doesn't exist. In this election campaign, that's just surrender talk.

"I'm speaking to those Republicans out there, Senate Republicans, who know deep down what is right for the country and consistent with the Constitution," he said. "Not just what's best for their party."

No, the fever won't break. Not until Trumpism, aka, the real existing Republican Party, is decisively defeated. And even in the best scenario, that will take years, maybe decades.