Our country is in the midst of a legitimacy crisis, with the Supreme Court at the heart of it. – from The Nation magazine
Our country is in a crisis. On a near-daily basis, evidence mounts implicating the former president of the United States in a coup attempt against our republic. And in just the past two weeks, a spate of extremist Supreme Court decisions have gotten rid of a woman’s fundamental right to make decisions about her own body, our government’s ability to regulate clean air and water as required by law, and the separation of church and state, all while curbing our ability to regulate deadly weapons.
The legitimacy of a democracy rests on the consent of the governed, on the premise that decisions made by civic institutions reflect the will of the citizens and noncitizens they impact. From the January 6 insurrection to the increase in voter suppression, it has become increasingly clear that our country is in the midst of a legitimacy crisis, with the Supreme Court at the heart of it.
But the court’s recent rulings signify more than just a curtailment of our rights. As an immigrant who has seen countries descend into civil conflict, I recognize a familiar trend here: These are the latest signposts in the frightening backsliding of US democracy into authoritarianism.
The latest decisions illustrate just how extreme this court is. The court gutted our government’s best tools to fight climate change under the Clean Air Act. Like the decision overturning Roe v. Wade, the majority’s reasoning risks overturning dozens of other precedents—including regulations that keep our water safe and protect us from heat and toxic chemicals. This came days after the Republican-appointed justices sided with a public school teacher who pressured students to recite Christian prayers in public, upending the separation of church and state our country was founded on. As if to make the goal of the right-wing court explicit, Representative Lauren Boebert of Colorado said shortly after that ruling, “I’m tired of this separation of church and state junk.… The church is supposed to direct the government.” This is religious extremism. What’s being described is not the United States Constitution; it’s theocracy.
For background, it’s important to briefly recap how these decisions came about. Five of the justices on the court were confirmed by Presidents Donald Trump and George W. Bush—two presidents who lost the popular vote. Four members of the conservative majority, based on their confirmation hearings pledging support for Roe, have potentially committed perjury. Two have been credibly accused of sexual assault. One, Neil Gorsuch, is there because of a stolen seat, after Mitch McConnell refused to even hold a hearing for President Obama’s Supreme Court nominee, Merrick Garland. And one justice’s spouse—Ginni Thomas—has been implicated in a coup attempt against the country.
No wonder only 25 percent of Americans have confidence in the Supreme Court.
Our response to this legitimacy crisis cannot be to simply tell people to vote in November, in the hope that public mobilization alone can restore our rights. We need a bold, ambitious democratic reform agenda that takes seriously the threat to our democracy and the failings that created that threat.
That agenda starts with repairing a broken, politicized judiciary. Congress has the constitutional authority to regulate the Supreme Court—from ethics rules to term limits to judicial review to the number of justices. We should start by creating term limits. This would ensure that each president could appoint the same number of judges, reducing partisan gamesmanship around the confirmation process, as well as making the court more representative of the will of the people.
Next, we should create robust ethics rules. Currently the judiciary has little to no democratic oversight, and it is up to each justice to voluntarily recuse him- or herself from cases. Just like Congress, the high court should have binding ethics codes to prevent clear conflicts of interest and require judges to recuse themselves from cases in which they may have a personal stake. We should apply these rules to lower courts as well.
Lastly, Congress can change the number of justices on the court at any time—and has done so seven times throughout history. Since 1869, the last time the high court was expanded, the US population has grown by over 800 percent, yet the court has remained stagnant at nine justices. In the face of stolen seats, a sitting justice implicated in a coup attempt, and a dangerous crisis of legitimacy, this commonsense reform should absolutely be on the table.
But to regain democratic legitimacy, we cannot limit our efforts to the high court alone. We should also support the growing movement for states to award their Electoral College votes to the winner of the national popular vote. And there is no excuse for maintaining the Senate filibuster—a rule that requires 60 votes to pass basic legislation—especially when Supreme Court justices can be confirmed with just 50 votes!
Serious times call for serious leadership. Some 75 percent of Americans currently think the country is headed in the wrong direction. Nearly 60 percent worry that our democracy is in danger of collapse. And their worries are not misplaced. These reforms may sound ambitious, but they are the minimum of what is needed to restore our republic and save our democracy.