Disappointingly, Harris largely ducked what was—and is—the fight of the Democrats’ lives: the court’s wholesale elimination of the party’s ability to govern. The conservative bloc, through what I would charitably describe as chicanery, has locked down American life for the foreseeable future. They essentially possess veto power over any legislation or executive order not to their liking, and they are now moving in the direction of stripping Democratic voters of their electoral power. This is an existential crisis that affects every Democrat running for federal office, and as we barrel toward the midterm elections and then into a presidential campaign, it’s incumbent on Democrats to explain how they will confront this challenge. Or to put it another way: How will they change the Supreme Court? Because it cannot persist in its current form.
The Roberts court has dismantled the Democratic Party in a number of ways. One was its 2024 ruling in Loper Bright Enterprises v. Raimondo, which did away with a judicial doctrine known as Chevron deference that allows the executive branch to respond nimbly and autonomously to laws passed by Congress. Its elimination essentially allows the high court to undercut the actions taken by the administrative state to carry out laws. This is specifically bad for a party that actually uses the federal government to facilitate policy, rather than using the federal government to destroy the federal government.
The Supreme Court, by the way, has never applied the major questions doctrine to a Republican president’s actions—though Roberts, Amy Coney Barrett, and Neil Gorsuch did contend in a concurring opinion that it should have been applied to Trump in the recent case that struck down the president’s tariff regime. In every other instance, the major questions doctrine has provided a facially neutral jurisprudential scheme to derail Democratic presidents. Democrats have also, in recent years, been sabotaged whenever the court issues a shadow docket ruling, whereas lately those unsigned rulings keep siding with Trump. As Ford recently noted, leaked Supreme Court memos have shone a new light on how the conservative justices’ shadow docket dabblings have gone from being “a simple administrative mechanism [to] a major roadblock for progressive governance.”
To Ford’s mind, Democrats find themselves facing some pretty stark choices to confront a Supreme Court that has gone to such lengths to annihilate their party: “Since the Supreme Court as currently constructed cannot be trusted to protect the egalitarian republic that, as Kagan noted, Union soldiers and civil rights activists fought and died to build, sufficient justices must be appointed to it to remedy the problem.”
I could spend several more paragraphs sketching out solutions to end the misrule of an illiberal court, but the time has come for Democrats to step forward and announce what they plan to do about it. The party is no longer on a collision course with the Roberts court—the collision has happened; the wreckage is in the road. To do anything, now or in the future, Democrats will have to undo the grievous harms that imperil their party’s ability to function. In these upcoming election cycles, if Democratic candidates don’t have serious ideas of how to solve this problem, then they are not serious Democratic candidates.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.
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