Unwilling to begin the process of expanding the strength of the Supreme Court from nine to fifteen, Biden is increasingly losing control of the narrative, writes Prof. Madhav Nalapat
Under the US Constitution, the three branches of the state (executive, legislature and judiciary) are to be independent of each other. Under Chief Justice John Roberts and five of the eight others, the US Supreme Court is certainly independent of the executive (led by the President) and also the legislature that has a Democratic Party majority in the House of Representatives and a nominal majority in the Senate, if the vote of the Vice-President is added.
Judging by some of its recent judgements, including two that place severe restrictions on the right of every citizen of the US to have an equal opportunity to vote, the US SC is on track towards getting the reputation of being the court for the 1% of US citizens who took away almost six trillion dollars as their windfall from the 2020 Trump stimulus that was added on to by President Biden in 2021. Another $4 trillion was taken away by the next 9%.
The share of the other 90% was $700 billion. The lower down the income scale statisticians go, the smaller was the gain in absolute terms from a stimulus bill that was proclaimed as being passed to help precisely the 90% and not almost entirely the 10%. $10 trillion is not a trifling amount of disposable wealth, and it is no surprise that at least billions are being spent to ensure that the three branches of government continue with being “Of the 1%, for the 1%, (of course in effect) by the 10%”. The remaining 90% have no say in practice.
When long years are spent at the vortex of power, and if it is a lifetime appointment, individuals such as Supreme Court justices may be forgiven some disconnect from reality. Check with the illustrious Kim dynasty in North Korea or those heads of state and government who have, or are set to have, stints in excess of 15 years at the very apex of power. Those democracies that have a two-term limit on top jobs may usefully expand that to three, as after all the final choice remains with the electorate, but no more.
The problem comes when they interpret the Constitution to mean the rubber-stamping of their own views on how society, the polity and the economy should be ordered, even if these are contrary to the needs and preferences of the overwhelming majority of people. The US Supreme Court has not only affirmed the right of states to change voting regulations so as to make it difficult for certain groups and classes to be eligible to vote, but has thrown the cloak of its authority over the amounts of money spent in influencing policymakers and on those making such payments.
Together, these two innovations of the John Roberts court make it resemble that presided over by Chief Justice Roger B. Taney during 1836 to 1864. That court affirmed a judgement that those of African descent, even if they have resided in the US for generations, cannot by virtue of skin colour be entitled to citizenship. Some of the judgements of the Roberts Court, especially those relating to transparency in the funding of politicians and special interests, as well as obstacles in the voting process, are approaching the standard set by Taney and his court.
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Something that John Roberts and the justices who go along with his judicial philosophy, do not appear to have noticed, although history books will. Rather than create a wall protecting the top 1% of US citizens from public scrutiny, had the Roberts court focused on protecting the rights of every citizen (no matter how lacking in income or what her or his skin colour was), it would have protected the future of the US as a democracy rather than weakening that trajectory.
President Biden, Speaker Pelosi and Senate majority leader Schumer should place before the US Congress the fiscal and other reform bills that are needed to ensure that those working for a meltdown of the US system of governance and its replacement with chaos and violence. Should the DINOs (Democrats in Name Only) defeat such measures, the 2022 midterm polls are not far away, and the Democratic Party—after ensuring that DINOs fail to get re-nominated to their seats on the Democratic ticket—can go before voters and explain what they had in mind to help them, and why they failed, and why the Democratic majority in the House and Senate need to be expanded if such policies were to get actualised.
This would be a better strategy than the present White House strategy of seeking to dissuade Joe Manchin and Krysten Sinema in the US Senate from not voting for measures that are certain to boost the chances of the Democratic Party in 2022. So lacklustre has been the Biden Road Show thus far that several Republican Party lawmakers are claiming credit for the very measures that they unanimously voted against without much efforts by the other side in several constituencies to expose this divergence between talk and action. Given the efforts being made by the Sino-Wahhabi and the Sino-Russian alliance working in tandem to widen already existing faultlines in US society through boosting the fringe (on both sides) and shrinking the space occupied by the moderate middle on both sides. In the Republican Party, as the shabby treatment meted out to Liz Cheney and Mitt Romney indicate, the fringe appears to have taken control of the mainstream.
The stalling tactics of Sinema and Manchin and their quixotic search for a consensus with the other side may ensure a similar outcome in the Democratic Party, unless President Biden shrugs off his hesitation in confronting the DINOs rather than pandering to them in the manner that he appears to be doing. Unwilling to begin the process of expanding the strength of the Supreme Court from nine to fifteen, Biden is increasingly losing control of the narrative, and that too so early in his presidential term. Had just being a nice guy won the hearts of voters, Hubert Humphrey and Jerry Ford would have won the US Presidential race. Just being “Not Trump” is no longer enough, now that Biden has been elected to a job that can turn into a nightmare in months if the course of action he seeks to follow fails through the US Congress or the Supreme Court.
The US Supreme Court is not helping but hindering efforts to ensure that the polity and society in the US avoid the meltdown that the Sino-Russian alliance seeks for it. Diluting the right to vote for the underprivileged and giving protection to the numerous billionaires eager to continue spending fortunes so as to make the US government and legislature deliver for them (rather than for the ordinary citizen) is a certain way of making tens of millions of those left out to abandon the ballot box and turn instead to the bullet and to violence in their effort to win for themselves rights that ought to be enforced rather than trifled with.
Those who are seeking to avoid a repeat in 2024 of the results of the 2020 Presidential election through changing the electoral system so as to make inclusion difficult for easily identifiable groups of citizens are leading the country and the Republican Party to disaster. Abraham Lincoln would not have been happy at the manner in which his party has developed into the Party of Trump. Chief Justice Earl Warren, who presided over the Supreme Court from 1953 to 1969, would have understood the societal consequences of several of the actions of the John Roberts court in a manner that the present Chief Justice of the US Supreme Court and at least five of his colleagues seem unable to comprehend.