Judicial fascism is coming to America, and Democrats need to start actually opposing it

With U.S. Sen. Susan Collins (R-ME) giving a speech wholeheartedly supporting Brett Kavanaugh’s confirmation to the U.S. Supreme Court, it is expected that Kavanaugh will become an Associate Justice of the U.S. Supreme Court, handing President Donald Trump and Senate Majority Leader Mitch McConnell a fifth fascist vote on our nation’s highest court of law.

Soon-to-be Justice Kavanaugh is a sexual assaulter, perjurer, drunkard, and far-right partisan hack who does not, in any way, act in the the impartial and ethical manner that many Americans expect from U.S. Supreme Court justices and other judges, and acts more like a political operative who has failed upwards his entire adult life. However, this blog post is not just about Kavanaugh, but all of what will be a five-member fascist bloc of Supreme Court justices and the looming constitutional crisis that they are expected to create.

The U.S. Supreme Court is not bound by prior precedent that it has set, can overturn its own legal precedent for any reason, and can, if it wanted to, even go as far as to abandon any pretense of being a judicial body that is designed to interpret the U.S. Constitution and the laws of the United States and, instead, simply act as a de facto legislative body with effectively no checks and balances that can quickly and easily be invoked to stop its absolute and dictatorial power. Long story short, judicial fascism is coming to America, and there is nothing in the traditional political playbook of the modern Democratic Party that would be able to effectively oppose judicial fascism.

By judicial fascism, I’m referring to implementing a far-right political agenda by judicial fiat, including, but not limited to:

  • Overturning the Roe v. Wade decision that protects reproductive rights and defining human life as beginning at conception instead of birth (i.e., fetal personhood), effectively banning abortion even in cases where it is medically necessary to terminate a pregnancy in order to save the life of the mother (fetal personhood is an extremely unpopular concept in U.S. public opinion, as states as conservative as Mississippi and North Dakota have rejected fetal personhood at the ballot box)
  • Overturning the United States v. Nixon decision that requires the President to comply with subpoenas that are issued as part of criminal investigations, effectively making the President completely above the law
  • Overturning numerous decisions that have made America a more equal country, such as, but not limited to, Obergefell v. Hodges (same-sex marriage), Loving v. Virginia (interracial marriage), and Brown v. Board of Education (racial integration of public schools)
  • Making it extremely difficult, if not impossible, for workers to collectively bargain and allowing non-union members and others not paying union dues to benefit from union-negotiated contracts
  • Abolishing social safety net programs, such as Social Security, Medicare, and the Affordable Care Act
  • Abolishing limits on campaign contributions, prohibiting states from allowing direct democracy measures (such as the New England-style town hall form of local government) or semi-direct democracy measures (such as referendums and recall elections), making it harder for people to vote, and making it easier for state legislatures to gerrymander congressional and state legislative districts
  • Allowing the President to use the power of the executive branch of the federal government to oppress women, people of color, immigrants, and political opponents
  • Invalidating any future progressive legislation that were to be passed by a future Congress
  • Completely disregarding entire portions of the U.S. Constitution that don’t fit the ideology of judicial fascism, especially the 1st, 4th, and 14th Amendments

In short, if Democrats were to win control of the Presidency and both houses of Congress, Democrats would not actually be in control of the federal government. Instead, a fascist bloc of Supreme Court justices would actually hold political power in this country, invalidating any attempt to enact progressive legislation and progressive executive orders designed to help make America a more perfect union for political reasons.

Mark Joseph Stern of Slate magazine wrote a piece outlining how Democrats and progressives could decide to mount a form of resistance against the fascist Supreme Court that would essentially be a left-wing version of disgraced far-right former Alabama Supreme Court Chief Justice Roy Moore’s efforts to disobey federal court rulings that he disagreed with, such as the Obergefell v. Hodges ruling that made marriage equality law of the land across the entire country. That is one approach that I believe would be simply too extreme of an approach, as willfully violating court orders for political reasons is something that I have never approved of, no matter how politicized and partisan our nation’s judiciary becomes, and it’s not something that is consistent with my political values.

Instead, Democrats should take a two-pronged approach to oppose judicial fascism in this country:

  • Brand the Supreme Court as a partisan institution in the court of public opinion — If done effectively, criticizing the judiciary in the court of public opinion will result in many Americans viewing the Supreme Court for the partisan, far-right institution that it actually is instead of a neutral interpreter of our nation’s Constitution and laws. The best way to do this is to use political messaging that can effectively convince a broad coalition of voters that the Supreme Court is undermining the very Constitution that they’re supposed to be interpreting, that the Supreme Court is disregarding any sense of impartiality, and that the Supreme Court’s decisions are having a negative impact on the quality of life in America.
  • If and when Democrats gain control of the White House and both houses of Congress, reform the Supreme Court — One measure that I would support is giving all of the Supreme Court justices, except for the Chief Justice, on the bench at the time that a Supreme Court reform measure is enacted legacy status (i.e., they would remain on the bench, but if they were to leave office for whatever reason, the President would not be able to appoint a successor justice to a justice with legacy status), and the President would be able to appoint one new Supreme Court associate justice for each federal judicial circuit, with the President able to fill vacancies in such associate justiceships as they arise, subject to confirmation by the Senate; additionally, three new federal judicial circuits (a 12th Circuit created out of part of the current 9th Circuit, an Armed Forces circuit, and a territorial circuit) would be created.

Judicial fascism is coming to America, and the Democratic Party can, and must, mount strong political opposition to an increasingly far-right and ultra-partisan federal judiciary.