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GELFAND’S WORLD - We can dream, can't we? Suppose that the Democrats run the table in the November elections, taking control of the presidency and both houses of congress. Let's also imagine that we aren't saddled with Senators like Manchin and Sinema this time around, so the Democrats in the Senate can do what needs to be done.
What is it that needs to be done?
There is one festering sore on the national rump which has long needed to be lanced, and that is the collection of bad Supreme Court decisions that have been piling up.
It has been getting worse -- a lot worse -- of late. It is a Supreme Court which is not only corrupt, but also legally and politically wrong. The non-lawyer public knows of the worst examples: The Dobbs case which overturned the Roe v. Wade decision and the Citizens United decision which gives private money free rein in the political realm.
But there have been many other bad decisions. The Court has elevated corporations to human status and then to supra-human status. It has whittled away at the separation between religion and government. Supreme Court overreaching has gotten to the point that it has encouraged lower courts to push the envelope way beyond the envelope. Just the other day, a lower court decided that private ownership of machine guns is OK. Presumably this was in anticipation of creating a test case to go before the radical-right Court majority.
Given the assumption of a huge blue wave election that returns the government to Democratic Party control, what remedies are available to us with regard to all the bad precedents?
May I make a modest proposal:
Let's establish a commission or study group which would consider what the Supreme Court has done wrong. It would make a list and then propose what the alternative verdicts might have been under a more enlightened Court. The government would then consider how to fix those errors.
There are various possibilities available to us in going about that process. But the first requirement will be to make sure that the current Court majority is no longer in charge. The easiest way to do this is to enlarge the Court to 13 or 15 justices, which would require legislation passed by simple majorities of each house. Then President Harris would appoint half a dozen new justices who would protect what comes next.
Then, the congress would pass, and the president would sign, legislation to undo the worst aspects of the Roberts Court decisions, including repealing Citizens United and the Dobbs decision. If the congress chooses, it can even pass rules limiting the ability of the Supreme Court to take up certain items. (The Constitution specifically allows for this.)
The newly constituted Supreme Court could decide to reconsider some of the worst decisions now in place and reverse them.
In any case, the congress should pass, and the new Supreme Court should protect, a new voting rights act. Roberts has been doing all he can to demolish voting rights, and this has to be reversed.
Notice that it isn't enough simply to pack the Court and wait for a brighter future. That would leave in place the ruinous precedents that are damaging this country already. This is why it's so necessary to create that group of scholars who can think about what needs to be undone.
Notice that we wouldn't have to wait for a government agency to be created for this purpose. There is nothing to stop the private sector from setting up its own organization and getting started immediately. A sufficiently brave law school faculty might start the process right now, or some coalition of the ACLU and retired judges might do the same. In fact, there is nothing to stop any number of groups from working side by side, simultaneously.
As set forth here, this proposal may sound a bit radical. But consider that Joe Biden and now Kamala Harris have vowed to return the rights defined in Roe v. Wade to the American people. How she will do so is left to her and the next congress, but consider: Everything said above would simply be to extend the Biden-Harris promise to other issues besides abortion. The unregulated power of money in politics is certainly something worth talking about, as is the failure to regulate the political machinations of giant corporations.
Addendum
I can now understand why Donald Trump would like to back out of debating Kamala Harris. We all saw her speaking abilities on Thursday night during her nomination acceptance speech. Still, he has accepted the September 10 invitation twice now, backed out once before, and as of Sunday, was waffling once again.
What I saw last Thursday was a speaker who has honed her craft as a trial lawyer and then as a political candidate. She will be able to keep her eyes open and her voice modulated should she eventually face Trump come September 10. She will be able to think on her feet and deliver charge for charge.
The problem of course in sparring with Donald Trump is that he is not constrained by simple matters of truth. How any opponent deals with that remains in question, although Biden did pretty well in the 2020 debates. Harris will know how to go after Trump's weak points, which explains why even now, he is trying to come up with some excuse for withdrawing. As of this writing, he has been complaining about ABC, a pretty weak excuse to be sure.
So we return to the question I asked a few weeks ago: Will he or won't he? But this time around, the question becomes, Will anybody even care?
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected].)
