5 Things Democrats Can Do About the Supreme Court’s Unchecked Power

In reversing Roe v. Wade, the Supreme Court has shown its intent to act against the popular will — and it won’t stop at abortion rights. From packing the court to defunding it, here are five ways Democrats can act to prevent further damage.

There is plenty Democrats can do right now to mitigate the future damage the Supreme Court can cause. (Wally Gobetz / Flickr)

On Friday, the Supreme Court overturned Roe v. Wade, ending the constitutional right to abortion and making abortion illegal in at least eighteen states, with more potentially to follow. Despite ample warning, based both on the justices’ histories and the leak of the decision almost two months before it became official, national Democrats were caught flat-footed. President Joe Biden, to his credit, strongly denounced the ruling, saying, “Today, the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized.”

However, the White House canceled its usual afternoon press briefing Friday, a move that suggested it was unprepared to face questions about how it plans to deal with the fallout. Other Democrats were rightfully quick to blame Republicans but didn’t have much else to offer, besides claiming that justices misled them prior to confirmation hearings and, bizarrely, singing “God Bless America” on the Capitol steps within earshot of protesters angry at the ruling. Then there were the usual cynical fundraising appeals and demands to vote.

Despite knowing this was coming, those seem to be the only ideas anyone in the party leadership had.

Overturning the precedent Roe set endangers the liberty and the health of hundreds of millions of people. And it shows that the reactionary court is willing to break with long-established precedent to advance an extreme right-wing agenda deeply unpopular with the public. The court is likely to hobble the Environmental Protection Agency’s ability to regulate climate-warming emissions this year. And associate justice Clarence Thomas has publicly stated that the right to contraception, the right to same-sex marriage, and the right to same-sex intercourse are all Supreme Court cases that need to be “corrected” — that is, struck down. Samuel Alito, who wrote the court’s opinion, likewise put the cases establishing those three rights under target in his decision.

And all this is only the tip of the iceberg. If things are allowed to stand this way, the extremely reactionary majority will remain in charge of the court for decades. The court has set its sights on huge swaths of the twentieth century. It might be too late to undo the damage the court has done to abortion rights. But if they can find, or be forced to find, the political will, there is plenty Democrats can do right now to mitigate the future damage the court can cause.

Codify the Right to Abortion

Democrats should still at least try to mitigate the damage to access to abortion. With majorities in both houses of Congress and the White House, Democrats could vote to “codify” Roe v. Wade — that is, pass a law declaring abortion legal. It is unclear how effective such a codification would be at this point. Given the Supreme Court’s recent decision, such a law would be immediately challenged as unconstitutional and probably have an immediate stay placed upon it by a judge while the case winds its way up the (largely right-wing) federal judiciary. However, such a law would, at least, bring the issue back into dispute, rather than allowing the Supreme Court’s extreme ruling to stand unchallenged.

Repeal the Hyde Amendment

The Hyde Amendment prevents any federal funds from being used for abortion. Since poor and working-class women struggled to access and afford abortion care even before the ruling, repealing the Hyde Amendment would make abortion more affordable and thus more accessible to more women. However, repealing the amendment would do nothing to make abortion legal in those states that have partially or totally outlawed it.

Impeach Extremist Judges

Several senators have publicly claimed that, at a minimum, Justices Neil Gorsuch and Brett Kavanaugh “misled” them regarding their views on abortion case law. Though the justices carefully calibrated their language — they are skilled lawyers, after all — if members of Congress earnestly believe the then nominees misled them under oath, it creates grounds for impeachment to allow Congress to investigate whether the nominees committed perjury. In fact, the Constitution says little about impeaching justices, only that they shall remain in office during “good Behaviour” [sic]. The House of Representatives can file charges of impeachment against any justice at any time, at which point it must make its case that the justices have not engaged in good behavior.

Because conviction requires a vote of two-thirds of the Senate, it is unlikely to succeed. However, impeachment would consume the justices’ time and energy and put the court’s secretive and reactionary practices into the daily news for months. This would, at a minimum, dramatically slow the court’s ability to further destroy well-established rights.

Defund the Court

Congress controls the federal budget. Democrats should pass a budget that completely defunds the Supreme Court. It’s true that the Constitution declares that justices’ compensation cannot be “diminished.” But who, other than the court itself, would issue a ruling to declare that passing such a budget was unconstitutional? And what would a court with no money do to enforce its ruling? Even if the Democrats wanted to avoid this potential constitutional fight, the Constitution says nothing about guaranteeing the Supreme Court’s staff, security guards, private drivers, computers, legal databases, or even access to electricity or plumbing in the court’s offices. Just cut it all off and make it impossible for them to work.

Pack the Court

There is no law that says the Supreme Court can only have nine justices. In fact, the Left has long called for “packing” the court, that is, adding additional justices to create a majority to override the current reactionary majority. Joe Biden can nominate and Senate Democrats can confirm as many additional justices as they see fit. The only thing stopping them is a lack of will to rock the boat or to put sufficient pressure on serial wafflers like Kyrsten Sinema, Susan Collins, and Joe Manchin.

The main enemy here is the reactionary activists who make up the Supreme Court — but top Democrats’ laziness, cynicism, and learned helplessness have abetted the hard right turn. Organizers and voters can point to these and other concrete actions the Democrats can undertake right now if they are serious about restoring Roe and preventing the further gutting of environmental protections, voting rights, and personal liberty.

Some of the measures I have suggested are extreme, but the court itself has gone to extreme lengths to remove our long-established rights. The Supreme Court has declared war on the country; it’s time for Democrats, and all of us, to fire back.