NC scholar: With Roe gone, Congress should suspend the Supreme Court

·3 min read

I had hoped, intensely, this wouldn’t actually come. But the Dobbs case has been handed down. Unvarnished. Lawless. Dishonest. Heedless of the damage that will now immediately ensue. Hideously ideological, unelected hacks have moved to inflict their politics and their religion on a non-consenting nation. Now we all reap the whirlwind.

The U.S. Supreme Court has informed the nation and the world that the American constitutional ideal of liberty protects guns but not a woman’s right to reproductive freedom. A huge majority of us don’t believe that. These right-wing statists have declared that doesn’t matter. They’ll force it on us anyway. Their preferences prevail. Human rights and democracy be damned. They seem oblivious to the fact that they have, this day, announced the death of the Supreme Court. It may come in a month, or in a couple years, but it’s coming. Self-inflicted.

Democrats and their friends must understand that the battle for the American democracy is now, presently, upon us. Not tomorrow, not if the Congress is lost, not if Trump gets elected again, but now. This day. The Supreme Court fired on Fort Sumter. And if they’ll do this, it’s childish to think they won’t do more. Government by angry minority is launched. It will not be voluntarily abandoned.

So, in Washington, Democrats must act. First, the party must clearly state the mission. It must demand, therefore, the enactment of legislation codifying Roe v. Wade. Now. The bill should be as clean and sparse as possible to build the broadest coalition. It’s not time for a Christmas tree. But it must move. And all Democrats, if they are to stay in the caucus, must fight for it. They cannot defer based on the filibuster, the desire to meet authoritarians halfway, or anything else. The line of engagement must be drawn. If we lose, we lose. But at least we’ll show we’re committed to the American promise. And if we lose at this moment, we serve notice we’ll fight again next week. And the week after. We’re finished surrendering without battle.

Then there’s the Supreme Court. It’s crucial to be clear-eyed. There is no judicial institution here to save. It’s gone. The only question is whether it takes the democracy with it. The elected branches of government must fight back. So next, as has occurred before in our history, the Congress should pass legislation postponing the next term of the Supreme Court. A quick and bold shot across the bow; declaring this will not stand. It will cause disruption and confusion. But anyone who doesn’t think Dobbs has brought disruption by the galaxy-full is dreaming.

Next, after Roe is codified, the Congress should remove the jurisdiction of the U.S. Supreme Court to hear abortion cases. The constitution grants such power. And the Court that handed down Dobbs will not be hesitant to invalidate a new statute codifying Roe – though it has no conceivable authority to do so. The high court should, therefore, be preemptively removed from the fray. If the justices attempt to act in defiance of the jurisdictional ban, they should be impeached. And, it is obvious to state, if these steps fail, the Supreme Court should be packed. Happily. These faux-judges can’t be allowed to do what the Confederacy couldn’t. And if we can’t get Democratic politicians to do all this, we have to get some new ones who will. Immediately.

I concede this sounds extreme. But the fact is, this is the trauma we face. Pretending otherwise won’t help. The clock is ticking. Democracy calls.

Contributing columnist Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.