Vice President Kamala Harris loves to say that former President Donald Trump is responsible for “the worst attack on our democracy since the Civil War.” It’s an irresponsible comparison for a country that has survived Pearl Harbor, Sept. 11, and, just in the past few years, nationwide rioting, onerous lockdowns, forced vaccination and masking, assassination attempts, lawfare to remove the leading presidential candidate, and more than 11 million known illegal border crossings.
So, while I do not agree with Harris that our democracy is so fragile to be blown off course by hooliganism in Washington, it is true that it is not impenetrable. The question is: What could actually dismantle it?
Harris’s attack on long-standing norms, including those governing the Supreme Court, flirts with fire.
Norms are what ultimately keep this ship afloat. Those in power can dismantle the filibuster, just like they can make a bunch of new states for partisan advantage. Breaking glass seems fun in the moment, but it’s purely destructive. Harris seems dangerously blind to this reality, vowing to end the filibuster to legislate nationwide on the divisive topic of abortion.
Destruction is similarly what Harris’s political oversight plan for the Supreme Court, euphemistically called “ethics reform,” accomplishes.
To know what threatens “our democracy,” it’s worth remembering how the Supreme Court plays into the system because it’s not an obviously “democratic” body. The Supreme Court takes democratically enacted laws and administrative policies cheered by democratically elected presidents and assesses them for constitutionality. The entire idea of a Supreme Court is a check on democracy, to protect minority rights enshrined in a written constitution. The Supreme Court should be doing unpopular, anti-majoritarian things if it takes its job seriously.
Yet this body is a vital part of our democracy because, without constitutional checks, no one’s rights can possibly be guaranteed. A legislative majority, or frankly an elite minority with media or corporate power, could simply reign as it pleased. Without a place to vindicate their written rights, the downtrodden tend to get rightfully angry. And there goes the system.
The Supreme Court, this necessary place to vindicate our written rights, must be insulated from pure partisan politics if it is to have any credibility at all. Justices must be incentivized to prioritize good judgment, consistency, and commitment to our nation’s future over everything else. This means giving the court independence from Congress and public opinion after a serious nomination process designed to find jurists dedicated to truth.
Harris’s interest in court packing is perhaps the most brazen assault on this delicate balance. But similarly concerning is her proposal for unconstitutional “term limits.” The Left has been in power for 12 of the last 16 years and feels as though it should have a three-quarter majority on the court. The problem is we’re not looking for a system that is partisan. We want one that gives justices the best incentive to be impartial.
Being on a court with colleagues for their entire career, if not life, gives justices a reason to think about the future effect of their decisions, no matter who wields power 30 years from now. And it prevents them from using the bench to audition for future jobs, whether that’s as elected politicians, wealthy business executives, or media superstars.
Equally bad is Harris’s push to impose “binding” ethics rules. We all like ethical judges, and our nomination process should intensely focus on selecting individuals who are beholden only to the law. But when the Biden-Harris administration says “Congress should pass binding, enforceable conduct and ethics rules,” that means putting one branch of government, the partisan one, over another. That destroys any actual and perceived independence.
And just imagine enforcement. A barrage of gossip would be leaked to the media to spur whoever wields the power into action. And who would wield this power? Why would the public trust him more than Senate-confirmed justices? And what would a powerful Supreme Court overseer demand? Recusal? Removal? Fines? All of a sudden, the Supreme Court is no longer an institution dedicated to the Constitution but one ensuring the overseer is pleased.
The result would be pure destruction of our three-branch system of checks and balances, with no consideration of the structure and stability needed to remain a nation of laws. We’re supposed to go along with this destabilizing effort because the Biden-Harris administration has labeled the existing Supreme Court in “crisis.”
That is a lie. The Supreme Court is exceedingly normal. The “rate of unanimity (approximately 46% of all decisions in the 2023 term) is among the highest in recent memory,” according to Supreme Court scholar Adam Feldman. Or take the previous year, when Chief Justice John Roberts sided with “his colleague to the left, Justice Kagan (82%), more frequently than with his colleagues to the right, Justices Alito (78%), Gorsuch (76%), and Thomas (75%),” as the America First Policy Institute’s Michael Berry notes. Or consider Justice Clarence Thomas, who, far from ruling this country from his chair, wrote the most dissents in the 2022 term of any other justice.
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A lie this big doesn’t happen by accident. It’s designed to service an end goal.
Our democracy is durable, but it requires our leaders to respect a few long-standing things, the independence of the Supreme Court being one of them. We should not take lectures on democracy from a vice president with so little understanding of or care for the norms that undergird our remarkable system of government.
May Mailman is the director of the Independent Women’s Law Center.