Joe Biden worries that the “extreme” US supreme court, dominated by rightwing justices, cannot be relied upon to uphold the rule of law.
“I worry,” the president told ProPublica in interview published on Sunday. “Because I know that if the other team, the Maga Republicans, win, they don’t want to uphold the rule of law.”
“Maga” is shorthand for “Make America great again”, Donald Trump’s campaign slogan. Trump faces 91 criminal charges and assorted civil threats but nonetheless dominates Republican polling for the nomination to face Biden in a presidential rematch next year.
In four years in the White House, Trump nominated and saw installed three conservative justices, tilting the court 6-3 to the right. That court has delivered significant victories for conservatives, including the removal of the right to abortion and major rulings on gun control, affirmative action and other issues.
The new court term, which starts on Tuesday, could see further such rulings on matters including government environmental and financial regulation.
The thing is, the drafters of the constitution didnt mean for the supreme Court to be as powerful as it is today. There is nothing in the constitution that even grants them the power of judicial review. They just interpreted that they inherently had that power, and we’ve gone along with it for the last hundred years.
According to the drafters, separating the judicial branch from the executive was a way to inhibit veto power and to prevent the executive from reshaping laws that have been passed by Congress. There only other function was to handle cases between two states, and to oversee an impeachment trial in the Senate.
It wasn’t entirely about the rights to review, but also about their impotence to do more than just talk. The balance of powers isn’t just that Congress can impeach, but also that they can write laws that address the Court’s arguments directly and the executive can just tell them “no”. But we’ve let them just be the final arbiter of law with no response from either other body, so they’re now just unelected super-legislators.
When the court is embroiled in corruption scandals and abandoning precedent to strip rights from citizens, the other executive institutions in the country shouldn’t just be acquiescing to their demands. Instead we get “you may be unethical and corrupt, and firing off society shaking reinterpretations to settled law, but thems the breaks”.
Tiptoeing into calling their adherence to the rule of law into question is moving in the right direction, but very slowly. Maybe that’s the right way to do it, but I don’t really trust that it’s not just a misplaced belief in the system to work itself out so moderates don’t have to actually do anything that might be scary.