Recall, if you can stomach it, the late summer months of the 2024 presidential campaign. The political press was churning out (accurate) stories about how Vice President Kamala Harris was distancing herself from some of the bolder policy proposals she’d previously backed, and many of the left were in a froth over it. But I paid it little mind. Timidly pivoting to the center was nothing new for Democratic presidential candidates, and what was the point of big policy proposals anyway? For that matter, what was the point of small policy proposals? As I noted at the time, Harris and her fellow Democrats had a bigger problem: They weren’t going to get to enact anything without the approval of Chief Justice John Roberts and at least four of his colleagues.
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.
Naturally, if you ask Roberts, he will tell you this is all overblown. This week, he whinged about the public’s low opinion of the court, saying, “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do.” As The New Republic’s Matt Ford noted, it’s hard to see what a hypothetical high court filled with avowedly naked partisans would have done differently than these allegedly non-political actors, whose every move is laser-focused on delegitimizing and eliminating the GOP’s political competition.
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.
But the Supreme Court has put its finger on the scale for Republicans in even less ambiguous ways in recent years. The conservative majority’s embrace of what’s known as the “major questions doctrine” has added a new layer of imperviousness to its reign of Calvinball terror. That doctrine, which is a very recent invention of the conservative legal movement, allows the justices to overturn a federal regulation if they believe Congress didn’t “speak clearly” enough when authorizing it. If you’re wondering what that means, well, it means whatever a majority of justices think it means: Over time, the major questions doctrine has allowed the justices a wide range in applying subjective and malleable criteria to rule against regulations.
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.”
As if kneecapping the Democratic Party’s ability to govern isn’t enough, the court’s ruling in Louisiana v. Callais has effectively eliminated the safeguards in the Voting Rights Act that ensured the rights of Black Americans to participate in electoral politics. Ford wrote that the ruling all but ensures that “Black representation in Congress will … plummet, further tilting the House map in favor of the GOP.” True enough, within days, Republican-controlled legislatures began the process of dismantling majority-minority districts.
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.”
To pack the court, or not pack the court? This is a question that Democrats have been at pains to avoid. And to be fair, they may have other options besides the nuclear one. They could engage in jurisdiction stripping to limit the court’s ability to interfere with liberal governance. They could reform the court in other ways beyond simply nominating four new justices to turn the tide: Pete Buttigieg has floated the idea of a 15-member court split among conservatives, liberals, and ostensible neutrals. Other lawmakers have proposed we simply abolish lifetime appointments.
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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