Joe Biden is President, and it feels like this feverous nightmare is dimming into a more normal temperature nightmare. As the debris is cleared, and the final lawsuits dismissed, it has become time to start considering what exactly the new administration can do. And the answer, right now, is very little.
The Democrats remain with their slim majority in the House of Representatives, and with a good run in, Georgia could do the same in the Senate, yet across all positivity lies the shadow of one institution: the Supreme Court. Its nine gowned members hold in their hands the ability to limit legislation, and nothing is beyond their reach. The Affordable Healthcare Act, abortion rights, even voting rights, all seem threatened by the new 6-3 conservative majority.
This forces questions at the very heart of liberal democracy. Should this unelected institution be allowed to strike down laws that are supported by the population, and thoroughly supported at that? What gives them the right, what gives them legitimacy, to overrule the majority of the nation?
‘Now hold on there!’ gasps the centrist, clutching their pearls and PPE degree, ‘we can’t just start politicising the courts! The first thing even the most casual dictator will do is pack the supreme court, and besides, if we do it, so can the opposition when they’re next in power.’ Institutions must be respected, norms followed, and the virtuous cycle continued.
And yet that virtuous cycle is not being continued – it is a cycle that wasn’t properly locked up and has had its front wheel stolen. Republicans have time and time again shown no regard for norms or institutions. They stopped Obama nominating a supreme court justice as a lame duck president, only to have a change of heart when it was Trump’s turn. They have used the filibuster to stop nomination proceedings, leading to the ‘nuclear option’ rendering it a useless tool. They ask vote-counters to throw out certain sets of ballots, while decrying the risk of voter fraud. Without serious reforms, there will be no end.
The Supreme Court has always been a political institution. It is only in recent years that some veneer of ‘apoliticallity’ has emerged. It has almost always been the case that judges were admitted as much for their political leanings as their judicial abilities. The best decider for whether a judge would be admitted was not their skill with a gavel, but whether the Senate matched up with the President. The lack of separation has even been such that a president, Taft, following his presidency, went on to become Chief Justice. The court holds immense power, and politics is the operation of power – of course it would be political.
This is not to say that the court should be packed. The virtuous cycle is a real phenomenon, and a return to it would be ideal. But we must accept that right now, the court is not so much an independent legal body, but an upper-upper house, representing not the nation, but ability of old judges to hang on until the next president of their leaning comes along. Reform is needed, and it is needed soon. It is easy enough to say that if we vote against them in enough elections, Republicans will change their tune. But for those who risk death if they lose their healthcare, or are forced into terrible decisions as their right to choose is ripped away, time is of the essence. For the life of its democracy, and the lives of its citizens, America must reform its Supreme Court.