Texas' Abortion Law Shatters the Illusion of a Non-Partisan Supreme Court

Have you ever heard of the Boiling Frog fable?

The fable goes, if you toss a frog into a pot of boiling water it will freak out and jump out of the pot. But if you put a frog in tepid water and slowly raise the temperature to boiling, it will let itself get boiled alive.

America is the frog in this scenario.

Last week, I wrote about Texas’ draconian abortion ban and the court’s non-response to the unconstitutionality of the law. It was the most drastic and partisan decision made by the Supreme Court, but it is only the beginning.

The right has built an insidious behind closed doors movement to shape the Courts to favor their unpopular policies. Their life's work is now coming to fruition and it has lasting impacts on our country.

A Brief History

To understand how we got to a 6-3 conservative Supreme Court in a country where a Democrat has won the presidential popular vote in all but one election since the ’90s, we have to go all the way back to the ’80s (that’s 40 years ago for those like me who still think it’s the 2000’s).

’80s-’00s: The Birth and Dominance of the Federalist Society

That is when the Federalist Society was born and has quickly risen to prominence as THE entity that selects the next conservative Supreme Court justice. They are backed by powerful dark money like the Koch’s and are dead set on forcing their ultra-conservative policies on the country.

• 1980’s: Federalist Society was founded as a conservative student organization. Their goal is to return power to the states (aka eliminate civil rights oversight from the federal government).
• 1990’s: New chapters of the Federalist Society open across the country on campuses, in law firms, and in conservative media.
• 2006: The Federalist Society successfully sinks George W. Bush’s Supreme Court nomination of Harriet Miers and pressures Bush to nominate Samuel Alito, more conservative and friend of the Federalist Society.

2010’s McConnell’s Court Takeover Legacy Cemented

Once the Federalist Society had a stranglehold on the courts, Mitch McConnell was able to manipulate Senate rules & norms to place 3 justices on the court thanks to a president that lost the popular vote by 2.8 million.

Just because it was legal, doesn’t mean it’s not anti-democratic.

• 2015: Mitch McConnell becomes majority leader in the Senate and grounds all Obama judicial nominations to a halt.
• 2016: 8 months before the election, Mitch McConnell rejects Obama’s nomination of Merrick Garland, a moderate, to replace Justice Antonin Scalia.
• 2016-2017: McConnell changes the makeup of the Court by having only 8 justices serve for a full year.
• 2017: The president nominates conservative Neil Gorsuch and McConnell quickly nuked the filibuster to elect him by a majority, pushing Democrats out of the process.
• 2018: Another sexual harasser, Brett “I love beer” Kavanaugh is appointed to the Court after a sham FBI background check and $60-200K in credit cards debt mysteriously paid off.
• 2020: With just 46 days before the election, McConnell and the former guy ram through Amy Coney Barrett’s nomination after liberal icon Ruth Bader Ginsburg passes.

Why a Radical Conservative Court Hurts America

First and foremost, the Supreme Court does not represent America anymore. Based on Census data, America is becoming more diverse, urban, and progressive. A democracy cannot thrive if a minority court can overturn the majority’s extremely popular policies.

Trust in our government is important if we want to build a better future. Sadly, the Supreme Court is no longer the nonpartisan body it still claims to be. Without trust in the Courts, how can Americans feel like their interests are being heard?

The Texas abortion ruling was the most overt decision to show the radicalization of the courts, but it’s not the last. Roe v. Wade has been settled law for 50 years. What happens when the Supreme Court starts rehearing gay marriage lawsuits?

Abortion is just the beginning. We are barrelling towards a few existential crises (only a few) that the court will most certainly weigh in on. Imagine what will happen when the Supreme Court overturns Climate Action policy resulting in greater destruction of our habitat?

Solutions for a Representative Court

At this point, the only solution to the Supreme Court is court reform. The loss of public trust cannot be easily rectified when three justices were rammed through in very suspicious circumstances.

• A Breyer Retirement: Justice Stephen Breyer is the 83-year-old senior member of the liberal wing of the Court. To avoid another RBG, progressive orgs have been pushing for Breyer to retire before midterm elections heat up (aka right now) so Biden can nominate a progressive (fingers crossed Black female) Justice while Democrats still control the Senate.
• Add Justices: The number of justices is not set in the constitution and has changed over the years (including in 2016 when McConnell blocked Merrick Garland). After Republicans stole multiple seats, it’s a no-brainer to add seats to the court to bring balance. Don’t call it court-packing, it’s merely rectifying a wrong that has already been committed.
• Term Limits: With the exceptions of the 3 new justices, our justices are old AF (average age is 70). Our country is evolving quickly in the digital age. We cannot afford to have octogenarians making decisions for our future. Plus term limits would give each president the opportunity to appoint the same number of justices each term, which cuts back the partisan fighting around each confirmation.
• Code of Ethics: It’s alarming to think that Supreme Court justices can do whatever they want. Instituting a binding code of ethics will ensure justices are held to higher standards (I like beer Kavanaugh would certainly not be a justice) and recuse themselves during conflicts of interest.

Take Action

Unfortunately, there is not much for us as individuals to change the courts, but we can continue to pressure our elected officials to eliminate the filibuster, pass popular policies, and push for court reform.

• Call - Call your Senator and ask them where they stand on eliminating the filibuster. (If you’re from California, Senator Feinstein has been especially cagey about our stance. Make sure she knows that she must represent the most progressive state in the nation with progressive positions!)
• Watch - The American Constitution Society has a short video that explains the court takeover and what is being done to fight back.
• Learn - the Supreme Court is on a dangerous trajectory to enable minority rule in our country. Learn more about the possibilities of court reform.