Bring It On! (Part 1)

Dr. Malcolm Cross

Democrats are increasingly asserting that the United States Supreme Court is “illegitimate” and demanding the implementation of various “reforms.”  Whether they continue to insist on “reforms,” or choose to debate their grievances on their merits, the Republicans should say, “Bring it on!”

Accusing the Supreme Court of illegitimacy is nothing new.  The Supreme Court’s Dred Scott decision, wherein it ruled that slavery was a constitutionally protected property right which the federal government could not outlaw, and that people of color, whether free or enslaved, didn’t have any rights anyway, provoked charges of illegitimacy throughout the North and especially from abolitionists.  The Supreme Court’s decision in Brown vs. Board of Education, ruling that public schools should be desegrated, likewise provoked charges of illegitimacy throughout the South. 

Now Democrats are saying the Supreme Court is illegitimate because its recent conservative decisions on abortion rights (or lack thereof), race-based affirmative action, and student debt cancellation are allegedly too unpopular with the American people, as if the goal of the Supreme Court is to conform to public opinion rather than make decisions based on how its members interpret the law.  Therefore, progressive Democrats in Congress are proposing to restructure the Supreme Court with court-packing, impeachment, and term limits.  They hope these measures will reduce conservative power on the Supreme Court.  But each measure the Democrats propose could, if adopted, be used against the Democrats themselves.

Consider “court packing.”  Today’s Democrats—especially the Progressives—want to add new seats to the Supreme Court to give Joe Biden and future Democratic presidents the opportunity to fill those new seats with progressive Democratic appointees.  It apparently hasn’t occurred to them that both parties could play this game.  Adding new seats can be done through simple acts of Congress.  If the Democrats were to win the White House and majorities in both congressional chambers in next year’s election, they could pass a law adding, say, six new seats to the Supreme Court to be filled with progressives.  But as soon as the Republicans win back control of the government, they could add even more seats to the Supreme Court to be filled with conservatives.  When would it end?  The Constitution specifies no upper limit for the size of the Supreme Court.  

Or consider impeachment.  When President Jefferson tried to persuade the Congress to impeach and remove judges appointed by his predecessors, Presidents Washington and Adams, so he could fill the vacancies thereby created with his own followers, Congress balked, deciding that impeachment should be used to only remove federal officials when there was evidence they had violated criminal statutes.  Because it’s against the law to lie under oath, Democrats have been looking for evidence that Brett Kavanaugh denied under oath that he never committed any of the 12 rapes or the other perversions of which he was accused during his 2018 confirmation hearings, and that Clarence Thomas in 1991, also under oath, lied when he denied the sexual harassment charges brought against him by Anita Hill.  Nor have they found any evidence that either Thomas or any other conservative on the Supreme Court has actually broken the law or allowed his rulings to be affected by accepting favors from wealthy benefactors.  But that won’t stop Democrats from continuing their search for incriminating evidence of something.  And their hunt will no doubt encourage Republicans to look more closely at progressive judges and justices as well.

Term limits for Supreme Court justices is at least one proposal advanced by Democrats that deserves more serious consideration.  But whoever supports term limits must remember that whatever cuts short the service of a conservative justice can be used to end the service of a progressive as well.

So Democrats have a perfect right to work within the system to try to implement any “reforms” they choose.  But they should remember that what goes around, comes around.  Their “reforms,” if implemented to limit conservatives, can someday be used by conservatives to limit progressives.

Which makes one wonder—why do Democrats want to risk the consequences of their “reforms.”  If their progressive policy agenda is truly as popular as they say it is, why not work directly for its restoration through Congress or constitutional amendment?  Perhaps because their agenda is not as popular as they think it is, and working on court restructuring is a good way to avoid public backlash should they try to advance their policies on abortion, race-based affirmative action, and student debt forgiveness directly.  We’ll explore that in “Bring It On! (Part 2),” coming to a column near you next week. 

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton from 1987 until 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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