Our Corrupt Supreme Court

The past couple weeks offered not just anomalous incidents in political overreach, but the first signs of the inevitable constitutional crises to come. To refresh:

 • ProPublica reported that Supreme Court Justice Clarence Thomas has a wildly corrupt relationship with a major Republican donor and activist.

 • Also in the judiciary, a federal judge exercised his raw power to nullify a federal agency’s work, basing it on nothing else than his own political preferences. 

 • The TN legislature ran two Black men out of the assembly for speaking out of turn. 

Each case illustrates different kinds of democratic decay that our legal and political world is literally incapable of reversing. The Supreme Court has been packed with the most extreme justices in generations, and they favor laws, like the Dobbs decision, that are deeply unpopular. To emphasize exactly how little ability anyone in the country has to check their actions, Thomas will continue to sit on the court unchallenged and uncriticized by his conservative peers. They have become a nakedly political body and don’t even conceal the fact that they’re using raw power to reshape American culture to their preferences. (Recall that just last year the conservatives freaked out when a draft of the Dobbs decision leaked—claiming egregious lack of decorum—even while today the smile mildly and ignore the Thomas furor.) Many more very bad decisions will be coming, and it won’t matter that large majorities of the public will hate them. The Supremes will do it because they can. 

The Kacsmaryk decision about mifepristone freaked a lot of people out, but it shouldn’t have. This was precisely why the GOP spent decades focused on the court. It is the one non-democratic institution that can advance wildly unpopular laws (or negate popular ones) without worry about what the public thinks. Kacsmaryk was Trump-like in that he overreached too extravagantly in a ruling that was just too stupid and political to stand. But that’s straight out of the GOP playbook. Overreach first, then retrench and slowly creep back up to that line. Judges will offer more restrained decisions with better reasoning (though the decisions will be extreme and the reasoning absurd by normal standards). Once those are normalized, they’ll ramp toward Kacsmaryk-style “jurisprudence.”

Finally, the TN case illustrates how the GOP has given up on democracy. Jan 6 made sure of that. We see it time and time again at the federal, state, and local level. That the GOP would have so little concern as take transparently racist actions like running two Black men out of the legislature (while forgiving the White lady) demonstrates that they just don’t care anymore. Norms are enforced by agreed-upon behavior and the capacity of actors to experience shame, and those norms are all gone now. 

I am increasingly hopeful that voters will begin correcting this dysfunction at the ballot box. But the judiciary is a huge problem, and one that can’t really be reversed. Kacsmary’s decision overturned FDA approval of a drug from a quarter century ago based on a lawsuit filed by doctors who clearly didn’t have standing. He violated the standing norm, and ignored laws on statute of limitations and Constitutional authority. And a *lot* of Republicans think that’s great. 

It is inevitable that a ruling like Kacsmaryk’s will get through the Supreme Court at some point in the coming years. (Sooner rather than later if voters re-elect Biden.) We will then have a case where the judiciary has effectively seized power over the federal government. When that happens, democracy will have collapsed for the second time in US history, and some really unpleasant stuff will follow. 

I don’t think people have really tumbled to the inevitability of this. Our democracy has been stable for so long, the national imagination stops at collapse. Most Dems, voters, and the media always believe “the adult in the room” will fix things. But that deus ex machina doesn’t exist in the judiciary. Judges have complete authority to rule any way they want. If they, like Kacsmaryk, decide to just issue plainly unconstitutional rulings, or if justices like Thomas decide to go all-in by actively using the courts to help funders, there’s nothing we can do. And the bad thing is that last week moved us ever closer to that broken state. 

I know it’s too grim to think about, but we must.