The Republican Supreme Court Power Grab Is a Disaster for the Legitimacy of Our System

Jack Holmes
·5 mins read
Photo credit: Chip Somodevilla - Getty Images
Photo credit: Chip Somodevilla - Getty Images

From Esquire

A president who won millions fewer votes from actual citizens than his opponent did is set to make a third lifetime appointment to the nation's highest court, meaning he will have installed one third of the justices. This can happen if his nominee is approved by a Republican Senate majority hailing from states that represent around 15 million fewer actual citizens than the Democratic minority. In this way, a president who has never commanded the support of a majority of the American population can enact a potentially decades-long conservative majority on the Supreme Court with the help of a minoritarian Senate caucus. This is a major crisis for the legitimacy of the American political system, one which Republicans will navigate by simply saying, "Fuck you."

Some of the hypocrites and scoundrels have already cooked up some convoluted justifications, in fairness. Mitch McConnell trotted out some crap about how this is different from when he trotted out some other crap to justify blocking President Obama's appointment of Merrick Garland. Lindsey Graham, who said explicitly in 2016 that he'd reject filling the seat in this scenario, now says, in part, that things are different because people were mean to Brett Kavanaugh. We are about to see an astonishing outbreak of public shamelessness, which the president has already contributed to in his own way: by saying the quiet part out loud. Rather than waste time creating arbitrary Rules that just happen to allow you to do what you want to do right now, he spelled out the real justification on Fox & Friends this morning.

We have the Senate, you don't, fuck you. That's it. We want to do this, we can do this, we will do this. All the other window dressing from those Republicans who still feel the slightest obligation to provide some kind of highfalutin justification is not necessary, because we all know the deal. This is a political party of which more than one member said back in 2016 that they would block a Hillary Clinton court appointment indefinitely! if she won the election. Just straight up rejecting the idea Democrats should get to govern if they're elected. This impulse has reared its head again and again, as Republican state legislatures have stripped their governors of power in the lame duck session before a Democrat can fill the office and exercise those powers. Never mind that voters gave them those powers. Republicans simply reject the notion that Democratic leaders who win elections are legitimate. Only Republicans are legitimate, even if they get fewer votes. After all, Republicans have also used extreme gerrymandering to compete in the House of Representatives.

Photo credit: Sarah Silbiger - Getty Images
Photo credit: Sarah Silbiger - Getty Images

But for all the grim reality that they can do these things, there is danger in doing so. The legitimacy of these institutions is already hanging by a thread, as McConnell has turned the Senate into a judge-confirmation factory that almost never takes up actual legislation, part of the larger plot to entrench conservative power through the federal judiciary so that it is impervious to the public will. This is explicitly undemocratic, to which halfwits will respond with talk of how the United States is a republic, not a democracy. This is very stupid, as Jamelle Bouie has demonstrated in the New York Times. "We are a republic, so we get to entrench our power by abusing the mechanisms of representative government" is not the spike-of-the-football these people seem to think it is.

As Senator Ed Markey has already made explicit, Democrats should greet this latest shameless power-grab with an unequivocal threat to pack the court in response should they win control of government in 43 days. They should also, regardless of this specific dispute, promise to grant statehood to Washington, D.C. and Puerto Rico. This is, first of all, the right thing to do: these jurisdictions are more subject to the whims of the federal government than anyone, yet they have no real say in that government. Taxation without representation and all that. But it would also go some way towards clawing back some democratic legitimacy for the Senate, which right now is just a wall preventing the legislature from doing much of anything at all—which happens to benefit the interests McConnell truly represents. Republicans oppose statehood on the basis that these jurisdictions would only elect Democrats, a stance that assumes facts not in evidence—at least with regard to Puerto Rico—but which nonetheless reveals that Republicans would rather attack democracy than compete for votes outside their base.

Or we can all sit around while the Department of Justice randomly designates cities as "anarchist jurisdictions" in order to strip them of federal funding and, potentially, to do far worse. In the absurd logic of fascism, Attorney General William Barr has cited New York City's decision to modestly cut its police budget to justify...cutting its funding. This, by the way, from the party of federalism, which supposedly abhors federal overreach in local matters. Underneath it all is just power: the desire to keep it and wield it, regardless of the preferences of the governed. While in his addled mind Barr may have identified urban insurgencies in some of the nation's largest cities—likely a prelude to trampling civil liberties—it is Republicans who are operating as an insurgency against legitimate democratic government that represents the interests of a majority of the American people in procedure and policy.

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