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Commentary & Opinion

Defund the Court

I mentioned defunding the Supreme Court to a Princeton professor after he moderated a panel on the future of democracy in America. He just sneered. Of course that only made me look closer and double down.

Most ways to deal with the Court take nonpartisan cooperation. It takes both houses of Congress to pass statutes. Because of the filibuster and two Democrats-in-name-only, Republicans have been able to control the Senate. There won’t be much we can do to regain a decent Court until liberals and progressives can regain control of the Senate, despite the inherent Republican tilt of the constitutional rule of equal state representation in the Senate. Nominations that would change the balance of power have zero chance. Enlarging the Court would be a nonstarter for Republicans. No statute would get through that would change the Court’s jurisdiction or protect rights that the Court wouldn’t.

But there are things that one house of Congress can do. Remember that Republicans were able to block paying the national debt until they got what they wanted in return. So let’s say I’m looking for a negotiating ploy. One House of Congress can single-handedly block the Court’s budget. The Constitution requires paying the justices, but it doesn’t say we’ve got to keep the building open, pay for clerks, marshals, heat, air conditioning or circulation, or can’t hand the building over to a different agency or company.

On a practical level it’s not clear how difficult defunding would make life for the Court. The justices can do their research elsewhere and they can operate without paper. But defunding could make it harder to get cases to the Court or get decisions out of it. It would be a nuisance, and might get through to some of them that they are totally out of sync with democracy, human decency and the American people.

The bigger issue is political. Roosevelt couldn’t pack the Court but succeeded when the Court backed off almost immediately. There’s an argument about why it did or who, if anyone, changed their votes but the Court did back off and, within a few years, Roosevelt had named all nine members of the Court. What I’m looking for is a basis for negotiations or for the justices to back off. I want to imitate the intransigence of the Tea Party and use their unity and intransigence against them. Republicans blame Democrats for not compromising, but let them see what happens when Democrats actually behave the way Republicans do.

That leads to another point. People who despise what this Court has been doing have to build the momentum to knock it off its pedestal. There may be losses along the way but movements need a series of goalposts, votes and things to cheer. An effort to defund this Court strikes me as a step along that path.

Don’t worry about the Court’s legitimacy. The Court has blocked progress for most of its history. Its gun rights decisions now empower the gun lobby’s extremists to refight the “lost cause” of the Confederacy and suppress, or “cancel,” African-Americans. These are serious issues – the Court’s support of gun rights and suppression of voting rights threaten the continuance of American democracy. The Court’s decisions against women’s rights and health sacrifice their welfare and threaten their lives. Only extreme gun-wrongs nativists and extreme anti-women activists could imagine that this Court is legitimate. Forget it. Let’s undermine the Court, lay siege to it, drive them crazy. Then maybe we can build a Court worthy of respect.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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