Democracy Requires Disempowering the Supreme Court

New rulings on presidential immunity, workers’ rights, and Chevron deference make it clear: we can have social progress, or we can have a powerful Supreme Court, but we can’t have both.

There’s no path forward for meaningful social progress in the US that doesn’t go through disempowering the Supreme Court. (Al Drago/Bloomberg)

Last month, the Supreme Court delivered a ruling that few people seemed to notice. It didn’t involve a 6–3 split and fiery dissents from liberal justices. It had nothing to do with Donald Trump. But it did shift the balance of power in American workplaces even further in the bosses’ direction.

Seven workers had been fired by Starbucks in apparent retaliation for union organizing. The official story is that they were fired for minor violations of policies the company rarely bothers to enforce. The National Labor Relations Board (NLRB) had ordered them to be reinstated on the grounds that there was “reasonable cause” to believe that labor law had been violated. Eight of the nine justices sided with the union busters, arguing that the NLRB had to meet the higher standard of showing there would be “irreparable harm” if the workers didn’t get their jobs back. (The ninth offered an opinion concurring with some aspects of the ruling and dissenting from others.)

Without a finding of irreparable harm, the court found, the workers will simply have to wait for their day in court to have any hope of getting back their jobs. The obvious effect, as Jacobin’s Alex Press noted at the time, was to create a “chilling effect.” She wrote, “If other workers see that Starbucks can fire seven workers for engaging in protected activity and those workers have to wait years for justice to prevail in the legal realm, it will make them think twice about organizing.”

If Starbucks Corp. v. McKinney was bad, though, two far more splashy rulings in the last week were catastrophic. Loper Bright Enterprises v. Raimondo delivered a serious setback to the regulatory state. And Trump v. United States, as one dissent put it, created a “law-free zone” around the presidency.

Together, these rulings should make one thing clear: there’s simply no path forward for meaningful social progress in the United States that doesn’t go through disempowering the Supreme Court. Ideas like packing the court with new justices and imposing term limits on old ones have long been dismissed as too extreme to be worth serious discussion, but we’ve reached the point where it’s utopian to think any kind of remotely meaningful left agenda can be enacted without pursuing some such strategy for reining in the court.

How the Court’s Latest Rulings Create the Worst of Both Worlds

The doctrine of “Chevron deference,” established four decades ago, gives federal agencies broad power to interpret the regulations they enforce. Ever since, it’s been the bane of corporate lawyers who want to be able to tie up regulators in court instead of simply complying with agencies’ rulings. In Loper Bright Enterprises v. Raimondo, the court reversed Chevron.

Much of the coverage of this “seismic” ruling has focused on how it could make life much easier for corporate polluters and much harder for the environmental regulators trying to stop them from poisoning the air and water. But environmental protection is hardly the only area where the end of Chevron deference will make it easier for the courts to undermine protections against corporate abuses. As CNN notes:

Overtime pay, benefits, workplace retirement plans, the minimum wage, independent contractors and employee rights to unionize are just some of the critical workplace issues for which guardrails set by agencies charged with enforcing workplace laws may be contested more vociferously than they already are now.

The decision may immediately affect a hot-button rule issued this year by the Federal Trade Commission banning noncompete clauses in employer contracts, a regulation the agency says could benefit 1 in 5 US workers but is being challenged by business groups.

A consistent libertarian could celebrate both the Starbucks and Loper Bright rulings on the grounds that they limit the power of the state. (The idea that we should worry about the power of entities other than the state is, of course, foreign to the libertarian worldview.) But even that consistent libertarian would be horrified by Trump v. United States. If Loper Bright defangs the power of regulatory agencies housed in the executive branch, Trump considerably sharpens the fangs of whatever individual currently runs that branch of government. It finds that the president enjoys broad legal immunity, even after leaving office, for being prosecuted for “official acts.” The impeachment process is the only protection when such acts blatantly violate the law.

It’s true enough that American presidents have wielded emperor-like powers in practice for decades — certainly since the George W. Bush administration’s post-9/11 expansion of the national security state, and in some ways since World War II. But now it’s official. The national security state can commit all the war crimes abroad and civil liberties violations it wants without any chance of presidents being treated like ordinary citizens who break the law. The difference between that and the status quo is the difference between a known mob boss walking free for years since he’s bought off cops and prosecutors to look the other way and the New Jersey state legislature simply passing a law forbidding prosecutions for organized crime.

During oral arguments on that case, one of Donald Trump’s lawyers conceded that even if the president of the United States ordered Seal Team Six to kill one of his political rivals, as long as Congress didn’t find out about it in time to impeach and convict him before he left office, the POTUS should be forever immune from prosecution.

The one-two punch of Loper Bright and Trump creates a potentially highly dystopian situation: an executive branch with far less power to police corporate America, but headed by presidents who could secretly order drone strikes in American cities and admit to it in their memoirs without legal consequences.

There’s No Way Forward Without Disempowering the Court

The United States is rare among advanced democracies in giving its high court such broad powers to overturn legislation passed by the people’s representatives. The reassuring civics-class myth is that this power exists to protect the rights of unpopular minorities. The truth, as I argued here last month, is that “the Supreme Court is just as capable of taking away rights already won as creating new ones,” and that a look at the historical record shows that, more often than not, “rich people are the ‘unpopular minority’ they’ve been the most eager to protect.”

Imagine that you’d never heard of the Supreme Court, and that you’d just been told that the United States lets an unelected panel of nine Harvard and Yale graduates overturn any law they wanted on the basis of their interpretation of the many majestic ambiguities of our centuries-old constitution. Whose interests would you expect to be served by such an institution?

Whether relatively liberal or relatively conservative justices happen to be a majority at any given time, the essentially unanimous Starbucks ruling is about what you should expect. But as Loper Bright and Trump show, the court’s current 6–3 conservative supermajority makes things dramatically worse. On questions where the liberal and conservative wings of establishment politics diverge, the court leans well to the right, and will for the foreseeable future. To even reduce the conservative majority from 6–3 to 5–4 in the next four years, we’d have to have (a) an unexpected death or retirement of one of the six conservatives, and not one of the three liberals, and (b) a Democratic president in office when it happens. As things stand, (b) is looking increasingly unlikely. Even if Biden beats the odds, what are the chances he gets two deaths or retirements of conservatives (and none of liberals) during his remaining years in office?

Anyone who has even modestly social democratic ambitions for reforming American society needs to ask themselves some obvious questions about which major initiatives they’d like to pass in the future that this ultraconservative Supreme Court would find some excuse for blocking. Universal health care? Big expansions in workers’ rights? Rollbacks of the imperial powers of the national security state?

Proponents of democracy and equality must throw out the civics-class narratives and seriously contemplate reforms to limit the power and independence of the court, like court-packing or term limits. We can have social progress in the United States, or we can let the Supreme Court stay this powerful. But we certainly can’t have both.

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Ben Burgis is a Jacobin columnist, an adjunct philosophy professor at Rutgers University, and the host of the YouTube show and podcast Give Them An Argument. He’s the author of several books, most recently Christopher Hitchens: What He Got Right, How He Went Wrong, and Why He Still Matters.

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