Here’s the Exact Moment the Supreme Court Went Off the Rails

Jurisprudence And how to get it back on track. By Enter your email to receive alerts for this author. Sign in or create an account to better manage your email preferences. Unsubscribe from email alerts Are you sure you want to unsubscribe from email alerts for Dahlia Lithwick? Nov 03, 20269:00 AM Photo illustration by Slate. Photos by Supremecourt.gov and Getty Images Plus. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Amicus’ “By the People” series concluded last month with a capstone conversation taped live in front of a virtual audience of Slate Plus members. Host Dahlia Lithwick convened an expert panel—political organizer Stacey Abrams; constitutional law scholar Daphna Renan; and movement strategist Ilyse Hogue—to grapple with a question that has become impossible to ignore: What happens when the Supreme Court has ceased to function as a backstop for democracy, and what would it take for the American public to actually reclaim the Constitution from a court claiming sole ownership over its meaning? Portions of their conversation are excerpted below, edited and condensed for clarity. Dahlia Lithwick: I would love to hear from each of the three of you—what was the moment when it became clear to you that the Supreme Court is not going to save us, and further, the moment the court stopped behaving like the stewards of American constitutional democracy? When did you realize it was time to stop believing that these nine justices can claim sole ownership over the Constitution? Stacey Abrams: I structure my thinking about this around DEI. We tend to dismiss DEI as a sort of corporate HR issue, but in the United States—and the right has understood this for a while—DEI is the container for all of the rights, privileges, and defenses that we’ve created since the birth of this nation, that guarantees access to citizenship and to the rights and prerequisites of being an American, and not just being an American, but of being in America. If you look at the arc of history, the things that go into that container are the 13th, 14th, and 15th amendments, the 19th Amendment, also the Americans with Disabilities Act, and the Immigration and Nationality Act. All of these things are DEI. There are three things DEI protects in our democracy: education—what you know, the economy—what you do, and elections—who’s in charge. The first attack on DEI under this regime happened when they went after the Voting Rights Act in Shelby County v. Holder in 2013. Education was Students for Fair Admissions, and the economy was their attack on Roe v. Wade, because it stopped women from controlling their bodily autonomy. But all of that was predated in 2013 with the attack on voting rights, which underpinned the ability of Americans to have a voice in how this country works. Daphna Renan: I started to think about this at the beginning of the Obama administration. I was a young lawyer in the Justice Department. President Obama and members of Congress had just won a landslide election on the argument that our healthcare system was broken, and we needed to fix it, and had spent all of the political energy, momentum, and capital they’d gained in enacting a landmark Affordable Care Act. And I remember seeing that all of a sudden, everything that mattered was what five justices were going to say about this statute when it was challenged for its constitutionality in federal court; and that it no longer mattered that there had been this massive political coalition-building and compromise and debate in enacting the law. It could all collapse under very controversial theories that five justices held.And at the same time the court was starting to really aggressively build out its unitary executive theory—the idea that the president could violate federal laws long understood to rein in abuses of executive power. Ilyse Hogue: My point of no return was in the months I spent between July and October of 2018 fighting Justice Kavanaugh’s Supreme Court nomination. We had almost never seen a citizen uprising opposing a nomination as powerful, durable, and sustained. And yet no one stood up—not Justice John Roberts, not Senate Majority Leader Mitch McConnell—and said, “Actually, the investment of faith in the American public in this backstop of justice is more important than this one man achieving a life goal.” I felt a total collapse of trust in all of the systems that are the pathways for ordinary citizen engagement in our democratic processes. Without that trust, we cannot function as a democracy. I have spent the better part of the last year on the road in communities around the country. We’re hearing from the fastest-growing segment of the American population that political scientists call “double-haters.” They don’t like either party. They don’t have a lot of faith in the institutions that are supposed to serve us. What we’re experiencing in these rooms with people from all walks of life, all political persuasions, is that they still have a deep belief in the promise the constitutional principles outlined: separation of powers, separation of church and state, equality, freedom, rights. So that abiding investment in those principles, coupled with the work you’re doing here with “By the People” to help citizens understand their own power in reclaiming those principles, gives me the hope that powers my work for the future of this democracy. Dahlia Lithwick: We got the next question from a listener. Andrew asks: “I’d be interested to know what your thoughts are on court reform. In particular, I think the court should be expanded. I think one of the first things we should do to reform the court is expand its size so that we’re not beholden to these nine small-sample-size judges, and then we can have a bigger group of judges, so it’d be much harder to make monumental decisions for the country based on the opinions of a small group of people.” Is expanding the Supreme Court the answer? Ilyse Hogue: I think it’s a yes/and. People understand the court needs to be reformed and transformed to reflect the will of the people and not the handful of electeds and corporations that influence it. I do not hear unity around one solution, and I think we need to couple any proposals around court reform with popular education so it becomes less scary and less weaponized and more of a wholesale vision for how the court serves the people, and is representative of the people it serves. Stacey Abrams: I actually start with the district court level. I live in the South. I’ve spent most of my life in the South, where the capture of the courts is not a Supreme Court issue, it’s a 5th Circuit, 11th Circuit, issue. How do we expand the court to reflect the composition of the country we currently have? We have not done that update in decades. We do not have a court that’s reflective of the needs and values or the lived experiences of the people they are adjudicating. If you were to ask someone on the other side of the ideological aisle, “Do you think things are moving fast enough?” Depending on what their lived experiences are—they may not necessarily think it’s the Supreme Court, but they will have a conversation about expanding the lower courts. I’m in favor of expanding the Supreme Court, expanding the lower courts. I’m also in favor of thinking about a term limit conversation at the Supreme Court level. But you cannot have those conversations unless you walk people through the entirety of the process. When people know more, they demand more, and the capture of the courts has relied on ignorance—on people not knowing what they should be entitled to. It’s largely reliant on the fact that people are so used to things being broken, they don’t know what it feels like when it works. Daphna Renan: When we talk about court reform, I think the question is, to what end? What is the proper role we want the court to play in American constitutional democracy? If you look at Callais this past summer, you have a court that believes it can decide that a landmark law enacted and reauthorized over and over by overwhelming votes in Congress, signed into law by presidents of both parties, a law vindicating a vision of the 15th Amendment—five justices get to say whether that can be our vision of the 15th Amendment, whether that can be the Constitution that belongs to us. This judicial supremacy puts the court’s understanding of the Constitution over any other law the people may elect representatives to enact, no matter how misguided, how dangerous, or how problematic that interpretation of the Constitution is. So when we talk about court reform, we should also be talking about the tools available to Congress, through federal laws, to restrict that totalizing power of the Supreme Court. One idea that’s been on the table over and over again throughout history, and actually passed the House of Representatives during Reconstruction, is a statute that would say you need a consensus among the justices before they can say a federal law is unconstitutional. It shouldn’t be that five or six justices on a thin, controversial reading of the Constitution can reject what a whole movement has built in coalition to transform into a landmark federal law. Dahlia Lithwick: Listener Paul asks, “If we cannot amend the Constitution to overturn flawed Supreme Court decisions such as Citizens United, an amendment that a heavy majority of Americans across the political spectrum want, do we still live in a democracy, or have we devolved into an autocracy? Are the people still in charge? Is our grand experiment in democracy still working?” Stacey Abrams: We live in a deeply divided country, and the divisions are so visceral that at this moment, a constitutional convention is not actually a solution set. We should not be so myopically focused on one solution set. We should look at all the tools we have. The challenge with all these tools is that they don’t necessarily look like they will build what we want. My work is really focused on how we excavate and investigate those tools. Then you wrap that together with Daphna’s work that says, “Here’s what we’ve done before,” and Ilyse’s work that says, “Here’s what people want to build.” I’ve spent much of this election season working on state and local elections. State elections can have more impact in this moment than a constitutional amendment, because we have the ability at state and local levels to start to tweak the things we need. Instead of waiting for a federal solution set, which is what the Constitution provides, I’m looking at how to reverse-engineer what opponents to democracy have often utilized. They don’t fight at the federal level alone. They go to the state and local level and dismantle democracy at its base and let the infection and the rot rise. That means we can start the planting at the base. It does not mean we don’t have a democracy. It does mean we have to fight harder for it. We are in a competitive authoritarian regime. That’s what we are. Where we stay depends on how hard we’re willing to fight and our willingness to try different things. Daphna Renan: The Constitution is not what blocks our ability to pass laws that limit the role of dark money in our elections. What stands in the way of that is the current interpretation by the Supreme Court, which is a deeply controversial interpretation. We can limit the court’s power to decide those kinds of questions, and its power to reject an alternative constitutional judgment that’s reflected in a federal statute like the long-standing bipartisan campaign finance reform legislation the court has been gradually gutting. During Reconstruction, the first Black member of the House, Joseph Rainey, argued we should bring to life these new constitutional guarantees just enacted in the 13th, 14th, and 15th amendments, and we should do it not through a kind of narrowly legalistic frame. He argued for the need to construe these amendments in the light of humanity, “in the light of progress and civilization” that we want to see. The abolitionists built out this idea that if you give the people the power to define the Constitution through our politics, through our organizing, through our coalition-building, through our building political parties, through our voting, and through our legislating, that there’s an alternative vision of the Constitution we can bring into life. Ilyse Hogue: We are not nearly as divided as the authoritarians want you to believe. Division is their fuel. Unity is our fuel. People have not given up. They may have given up on the two-party system. They may have given up on the idea that politics as usual and the status quo is going to deliver what they want. But they are resilient, and they want to fight if we’re offering them pathways to fight for this vision of universal rights, freedoms, and opportunity. Constitution Jurisprudence Supreme Court Voting Voting Rights Judiciary By the People