The Democrats Are Enabling the Right’s Supreme Court Takeover
Chief Justice John Roberts is spearheading the Right’s judicial coup — and Democrats’ worship of norms and institutions is allowing it to continue.
As the director of the horror show that was the Supreme Court’s 2022 term, Chief Justice John Roberts on Thursday opted to script his movie with the same plot twist as Don’t Look Up. In an environmental ruling literally issued on Asteroid Day, Roberts channeled President Janie Orlean and aborted the government’s nascent effort to halt the climate crisis imperiling the planet — a decision making it more likely that the human story will mimic the film’s ending.
Amid desperate screams from scientists about the impending climate catastrophe, Roberts limited the authority of the Environmental Protection Agency (EPA) to regulate carbon emissions. He declared that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ but it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme” to halt the disaster.
As our reporting has shown, today’s cataclysmic ruling (though slightly narrower than it could have been) is part of a larger judicial coup fueled by dark money that has bought both sides of the justice system — the petitioners and the arbiters.
This coup — which has received far less attention than the January 6 plot — features a cadre of unelected judges appointed by popular-vote losers now commandeering control of the government. It has resulted in the evisceration of protections for voters, women, workers, consumers, retirees, and now every living thing on the entire planet.
All of that was engineered by the coup’s puppet master, Roberts, a former US Chamber of Commerce lawyer and Bush 2000 election thief who enjoys incessant corporate media billing as a thoughtful moderate — even as his rulings legalizing corruption made this rampage possible, and even as he now threatens to considerably expand the carnage.
And yet Roberts, Leonard Leo, and the other real-life House of Cards operatives of the American right are not the only reason this happened.
They were enabled by a Democratic Party and its own cast of West Wing characters, who in the name of bipartisanship, comity, and manners started surrendering right when the putsch began. At precisely the moment Roberts began his crusade, these Democrats constructed an entire religion of normalism — the worship of norms, institutions, and etiquette above every other principle or inalienable right.
There is little chance this nightmare will end unless we first understand how this religion took hold.
“Within the Mainstream”
Some could argue that Democrats’ normalism began in 1991, when Joe Biden failed to block Clarence Thomas’s court nomination and the Democratic-controlled Senate confirmed him to replace civil rights hero Thurgood Marshall on the Supreme Court.
But that moment was the prelude. Democrats’ church of normalism really rose in the mid-2000s, when, during the culmination of Aaron Sorkin’s television homage to bipartisanship, fully half of the Senate Democratic Caucus voted with Republicans to install Roberts as chief justice.
Having finished up a string of disillusioning jobs in Washington, I was quoted back then in the New York Times for being particularly demoralized by Democrats’ refusal to seriously challenge the nomination of Roberts, the Rasputin with the sunny smile who was cheerily billed as “the go-to lawyer for the business community.”
But my anger was anomalous among Democratic Capitol Hill staff, liberal think tanks, advocacy groups, and political committees. Instead, the prevailing sentiment was that of a young senator named Barack Obama, who — in a preview of his White House — lashed out at those begging Democrats to do whatever they could to stop Roberts.
In a much-touted blog post that now reads both like a Jed Bartlet monologue and a terrible omen of what was to come, Obama first scoffed at the idea of Democrats wielding power in an aggressive way:
According to the storyline that drives many advocacy groups and Democratic activists — a storyline often reflected in comments on this blog — we are up against a sharply partisan, radically conservative, take-no-prisoners Republican party. They have beaten us twice by energizing their base with red meat rhetoric and single-minded devotion and discipline to their agenda.
In order to beat them, it is necessary for Democrats to get some backbone, give as good as they get, break no compromise, drive out Democrats who are interested in “appeasing” the right wing, and enforce a more clearly progressive agenda. The country, finally knowing what we stand for and seeing a sharp contrast, will rally to our side and thereby usher in a new progressive era.
I think this perspective misreads the American people.
He then went on to apply the argument to court nomination fights, telling progressives to shut up and accept capitulation:
A majority of folks, including a number of Democrats and Independents, don’t think that John Roberts is an ideologue bent on overturning every vestige of civil rights and civil liberties protections in our possession. Instead, they have good reason to believe he is a conservative judge who is (like it or not) within the mainstream of American jurisprudence, a judge appointed by a conservative president who could have done much worse (and probably, I fear, may do worse with the next nominee). . . .
Short of mounting an all-out filibuster — a quixotic fight I would not have supported; a fight I believe Democrats would have lost both in the Senate and in the court of public opinion; a fight that would have been difficult for Democratic senators defending seats in states like North Dakota and Nebraska that are essential for Democrats to hold if we hope to recapture the majority; and a fight that would have effectively signaled an unwillingness on the part of Democrats to confirm any Bush nominee, an unwillingness which I believe would have set a dangerous precedent for future administrations — blocking Roberts was not a realistic option.
Obama did cast a ceremonial vote against Roberts when the confirmation was already a foregone conclusion. However, he not only helped shift the Overton window to the hard right by casting Roberts as “mainstream,” he also had made a much bigger statement about his objectives and that of his party. He was the high priest of normalism.
Appeasement, compromise, preservation of norms, and surrender to the Right in the name of being “realistic” was the new priority — leading to a president who campaigned on hope and change but then reneged on his promise to codify Roe v. Wade, said he “regrets” trying to block Justice Sam Alito’s Supreme Court nomination, praised the billionaire Koch brothers pushing our politics to the far right, tried to help Republicans cut Social Security, and demanded credit for boosting the fossil fuel industry.
It also led to an administration that bailed out health insurers and banks while millions were immiserated, and a White House that berated the Left as “fucking retarded” — so demoralizing Democratic voters that a reality TV star demagogue soon took over and gave Roberts the three other right-wing zealots he’s now using to repeal the twentieth century.
“A Man of Honor”
After four years of Donald Trump’s tenure, which culminated with the installation of Supreme Court justice Amy Coney Barrett, you might have expected Democrats to discard the appeasement strategy, especially because party leaders have been so eager to get on cable television to cite the January 6 riot as proof that the end of democracy is nigh.
Instead, though, the opposite has happened. With swamp things like Rahm Emanuel and Politico hilariously promising the rise of “Biden Republicans,” Biden has spent the first two years of his presidency trying to appease the GOP and delivering on the only promise he seems intent on keeping: that “nothing would fundamentally change.”
Biden has not only abandoned his promised legislative agenda and declined to implement promised executive actions; he has continued to tout his “friend” Senate Minority Leader Mitch McConnell (R-KY) as a “man of honor” while McConnell returns the favor by bragging about blocking Obama Supreme Court nominee Merrick Garland, who might have helped prevent Roberts’s judicial coup laying waste to America.
Worse, Biden and his White House are signaling they are unwilling to wield real power to counter the Supreme Court’s radical conservative supermajority in any significant way. Up until Thursday, they had steadfastly defended the filibuster. They have also rejected court expansion proposals. In the days following the overturning of Roe, the administration even brushed off demands that it consider using its authority to offer reproductive health services on federal lands.
“The White House is unlikely to take up the bold steps to protect women’s right to have an abortion that Democratic lawmakers have called for in recent days,” reported Reuters after the news service interviewed top administration officials. “Biden and officials are concerned that more radical moves would be politically polarizing ahead of November’s midterm elections, [or] undermine public trust in institutions like the Supreme Court.”
Of course, that public trust is already gone. Gallup’s most recent poll shows the public’s confidence in the Supreme Court has hit an all-time low. Apparently, though, Biden and his staffers are so out of touch with reality and so devoted to normalism that they don’t even know that — and in exuding such a let-them-eat-cake attitude, they may have catalyzed a rage we haven’t seen in generations.
The Church of Normalism Must Fall
This gets to the silver lining in all the darkness — because things have gotten so bad and Biden is so much less charismatic than Obama, maybe more people can see through the bullshit and stop allowing themselves to be politically anesthetized, lobotomized, and euthanized by MSNBC and every other Acela-corridor elite media outlet whose mission is to ether progressives and scoff at the working class.
Maybe there is finally a critical mass that has reached that horrible, gut-wrenching disillusioning inflection point I found myself at back in the mid-2000s — that turning point in my life when House Democrats tried to get me fired for daring to criticize Biden’s bankruptcy bill and I naively wondered why almost nobody seemed bothered by Roberts’s installation.
Maybe Democrats’ cartoonish Neville Chamberlain act in the face of the Roberts revolution is going to mainstream righteous anger in ways we have not seen since that kind of rage forced the party kicking and screaming to actually do the great things of history.
If that somehow happens, then there’s plenty that can be done — not after the next election, not next month, not tomorrow. Right now.
For example: Democratic activists and elected officials at every level of government can demand that their leaders in Washington take a page out of the playbook of their party’s most popular president in history and seriously press to expand the court. The Congressional Progressive Caucus could right now reintroduce Franklin Roosevelt’s own legislation and begin the reclamation of a court that is obviously out of control.
Even if it fails like FDR’s bill did, it would send a message to the court that the Roberts revolution will no longer go unchallenged — and that was a message that successfully countered the court in Roosevelt’s day.
Those same Democratic voices can demand Biden start signing the pile of executive orders gathering dust in the White House — orders that could limit the court’s EPA ruling today.
Meanwhile, Democrats in Congress could also rip a page out of recent history and simply start legislatively overriding the court’s most extreme rulings. As the American Prospect has noted, a Yale study shows that such overrides “blossomed” between 1967 and 1990, and that, in 1991 alone, a civil rights bill overrode “as many as twelve Supreme Court decisions that had significantly cut back on workplace antidiscrimination protections.”
A separate study found that “the 1990s was actually the golden age of overrides” — but that after 1998, “overrides declined as dramatically as they had ascended.”
Such overrides are particularly relevant in the West Virginia v. EPA case handed down Thursday. As journalist Amy Westervelt pointed out on the latest Lever Time podcast, the court was ruling on whether Congress had explicitly given the agency the power to regulate power plants’ greenhouse gas emissions. That means the Democratic president and the Democratic Congress can simply pass a one-page bill making clear that yes, the EPA does have the power to try to halt the climate crisis threatening all life on the planet.
These are just a few examples of things that can be done, and it is heartening to see at least a few Democratic elected officials starting to speak up against their conservative party members who are still stuck in the Obama era — and still enabling the Roberts revolution.
But we should be under no illusion that countering that revolution will be pleasant or easy. And most importantly, it will not be normal — which is a challenge to the modern Democratic Party’s ethos.
At its core, normalism — the worship of norms and normalcy — is the abiding religion championed by Obama and Biden, promoted by corporate media, and internalized by rank-and-file Democratic voters. It is a religion embodied in these kinds of viral tweets and explicitly articulated by former CIA agent and current conservative Democratic representative Abigail Spanberger of Virginia, who last year declared, “Nobody elected [Biden] to be FDR, they elected him to be normal and stop the chaos.”
That statement was an admission that, when the Democratic Party was most popular and powerful, it was the opposite of a normalist party. Indeed, FDR and his voters were not disciples of normalism — he spent much of his presidency pressing a New Deal that violated all sorts of outdated norms that had for too long protected a destructive Supreme Court and economic establishment. Same thing for the Great Society era of civil, human, and economic rights.
But Spanberger’s comment was also a reminder that today’s normie Democrats have been taught by their leaders and their media to love norms above all else — even above reproductive rights, workers’ rights, consumer rights, and the long-term survival of the human species.
That shift to normalism is a big reason we are here, and why the Roberts revolution is accelerating.
Ending that religion is the first step to stopping the chief justice’s rampage — before he destroys what’s left of the country.