The radical and unlawful Supreme Court decision handed down Tuesday on immigration makes reforming that court all the more urgent, before they can do more damage to an increasingly fragile system of government.
In their unsigned order, the Supreme Court's far-right majority declared that they have control over foreign policy, and that they can direct the executive branch to reinstate the policy of the former administration (the one that they like better). The decision was issued from the "shadow docket," where the extremist majority of the court has been conducting some of its most dangerous work, unsigned and without any public transparency or arguments, or any need to explain the decision.
In this ruling, the court overthrew longstanding precedent that kept the court away from what has been seen as the executive branch's domain: foreign policy. For decades the Supreme Court shied away from "the danger of unwarranted judicial interference in the conduct of foreign policy." Now the court is saying that a federal judge in Texas appointed by Donald Trump has the power to direct President Joe Biden's foreign policy with Mexico in negotiating the immigration policy.
What's more, the order "makes no sense," as Ian Millhiser explains. "It is not at all clear what the Biden administration is supposed to do in order to comply with the Court’s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is," he writes. "And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations."
All of that is bad, and it is very much an outgrowth of the Court's use of the shadow docket: No one has to sign their name to the order and they don't have to provide legal justifications and weight of precedent that they must address in decisions resulting from regular process. They increasingly are choosing to take these hot-button political cases—religious exemptions to COVID restrictions, the pandemic eviction moratorium, this immigration case—on an "emergency" basis that allows them to circumvent full proceedings.
This is a really radical decision from an activist court that is acting in an entirely political way
"It is time for Congress to curtail the power of a judiciary out of control," Norman Ornstein, emeritus scholar at the American Enterprise Institute, tweeted. "Congress has the power to limit the courts' jurisdiction beyond the original jurisdiction in the Constitution."
That's one necessary reform, and interestingly, is the approach the House of Representatives is taking on voting rights. After finishing work to advance the infrastructure bills Tuesday, the House passed H.R. 4, the John R. Lewis Voting Rights Advancement Act. In addition to restoring the parts of the Voting Rights Act the conservatives have excised, the legislation directed the court to put greater weight on the "public's interest in expanding access to the right to the vote," than the state's power to restrict that vote. The legislation "repeals the court's own rules for deciding election-related cases—which strongly favor states' ability to suppress votes—replacing them with voter-friendly directives that would force the justices to safeguard equal suffrage."
Furthermore, H.R. 4 prohibits the court from using the shadow docket to issue emergency orders that reverse lower court decisions protecting voters. The 2020 election provides examples of the court doing just that, tossing lower court decisions that allowed great flexibility for voters to cast their ballots because of the pandemic, using vote-by-mail, or curbside voting, or drop boxes, and extending voting hours.
To pass those reforms and to take on more (like restricting the court's reach in executive matters), the Senate first has to get rid of the filibuster, at the very least for issues related to voting rights. That's the first essential reform. The next is directly reforming the composition of the Supreme Court, preferably through expansion.
There really is no time to spare. The six conservatives on the court just keep demonstrating that they are at war with President Joe Biden and the Democratic Congress. They are asserting power where the Constitution does not grant it, and it’s time the other two branches fight back.
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