How do Democrats fight back against the US supreme court?

On last week's episode we discussed with the lawyer and author Michael Waldman whether

we should still consider the United States Supreme Court a democratic institution.

Since then, America's highest court published its final judgements for this session, which

as the six conservative judges set about a series of changes that could reshape the foundations

of American society.

Killing race-conscious college admissions, shelving President Biden's student loan forgiveness

program, and siding with an evangelical Christian website designer who doesn't want to create

websites for same-sex marriages.

Joe Biden was stinging in his criticism of the Supreme Court.

progress, end of quote.

I agree with that statement from the dissent.

of July weekend, progressives voiced their anger at what they see as a lack of determination

to fight back by fellow Democrats and the Biden administration.

So what can be done?

And is there enough political will to do it?

I'm Jonathan Friedland, columnist at The Guardian, and this is Politics Weekly America.

the latest decisions from the conservative-dominated Supreme Court will have on the ground.

States and overturned the very important precedent Roe v. Wade, sparked really phenomenal amounts

of national outrage and has, of course, also led to, you know, just unspeakably large quantities

of human suffering.

And that has decimated the court's public approval rating.

You know, really, people are beginning to be very much more avowed and vocal about their

understanding of the court as a Republican-captured political entity.

And you know, this then follows a series of really kind of maximalist decisions from the

court, the less surprising ones this term, such as the elimination of affirmative action,

race-conscious admissions meant to diversify American colleges and universities, a massive

blow to LGBT civil rights in a ruling that allows business owners to discriminate against

gay people on free speech grounds.

And of course, the elimination of President Biden's student debt cancellation program.

Let's drill into those.

We talked last week on the podcast about the decision to end affirmative action in colleges

and universities, that being shorthand for the notion that race can play a part in the

decisions, the admission decisions colleges can make.

They can redress historic imbalances.

And sure enough, as we expected in our conversation on the podcast last week, the Supreme Court

6-3 to end it.

right now on the basis of diversity and changes the game really for students trying to get

into colleges and universities.

And this was this decision taken in a case brought by a Colorado website designer.

we don't want to say.

At the same time, civil rights laws in this country say that businesses that are open

to the public have to serve everybody.

But what the court said today is that businesses in some cases can refuse to serve certain

customers if doing so would force them to say something they don't want to say, like

a business who designs websites, a stationer, maybe even someone who is landscaping your

customized and tailored service.

Neil Gorsuch said that the government cannot force you to do that business with someone

that you don't want to do business with or something you don't want to say.

because we should make this point that the Supreme Court do not make sort of decisions

in the abstract about matters of sort of rights and philosophy.

They're rather specific human beings.

Cases are brought before them.

They have to judge.

So what was this case?

This individual website designer, what was she asking for and what did the court decide?

She is an evangelical Christian who has a belief in her words that same-sex marriages

are false.

That's the word she uses, that they're false.

Her contention was that Colorado civil rights law, which says that businesses open to the

public cannot discriminate on the basis of a series of identity factors, including sexual

orientation when they are serving the public.

They can't say, no, I will not serve you because of your race.

I will not serve you because of your religion.

I will not serve you because you're gay.

But Lori Smith wanted the ability to discriminate against gay couples.

When she made her website, she did not want to ever have to make a website for a gay wedding.

This is an entirely hypothetical case because nobody has ever asked her to make a website

for a gay wedding.

There was some brief filed by her attorneys who are part of a group called the Alliance

Defending Freedom, which is a litigation shop that does a lot of anti-gay and anti-abortion

lawsuits, claiming that Lori Smith had in fact been asked to make a gay website by a

man who had reached out to her and said, you know, one day I might, you know, I'm getting

married to my partner.

I would like to get some invitations made and perhaps also a website.

And when a reporter reached out to the man who had allegedly made this request, you know,

his name and phone number was included, he had never heard of such a thing.

He did not make any such request.

I am in fact heterosexual and I've been married for a long time.

So there's some speculation that that was invented.

But you know, there was no actual injury.

of mind might have thrown it out for being a bit flaky on these basic facts.

But instead, they were quite determined to make a decision and decision one particular

whether a plaintiff actually has standing to sue, questions of whether the lawsuit is

workable on procedural grounds are sort of irrelevant.

And sometimes, you know, facts of the underlying case are deemed irrelevant.

And, you know, this court will get to the merits question if it wants to.

So in this case, the court wrote in a quite expansive opinion by Justice Neil Gorsuch

that Smith had a right to refuse service to gay couples on the grounds that a website

design is expressive, that it is akin to an art form, that it has content that she would

be compelled to make it.

So it threatens to undo quite a lot of civil rights law because now any business can claim

that their commercial conduct is, quote unquote, expressive in order to get a license to

discriminate against disfavored groups.

I mean, you can see obviously this is a direct attack on the rights of the LGBTQ community.

That's very direct.

But the implications are go beyond that.

There's a lot of movies in the 40s, 50s and 60s about discrimination, the scenario in

which, you know, a black couple might try and register in a hotel and would be turned

away. And obviously that was then struck down and seen as being obvious discrimination.

I'm just wondering that now, given this judgment, what is to stop somebody running a

hotel saying, no, I don't want black guests, I don't want Jewish guests, you know, the

golf clubs that were restricted and didn't have members from minorities.

What is to stop them saying that this is a right to their kind of expression in the same

way as the notional designer of websites in this case?

We can look to Supreme Court case law.

You know, one of the most famous civil rights cases concerned a hotel, the Heart of

Atlanta Hotel, that wanted to be able to discriminate and not accommodate black guests.

And, you know, seemingly what this court has now opened the door to is for that hotel to

make the claim that by accommodating black guests or interracial couples or, you know,

any kind of identity that they disapprove of, that by accommodating them in their

commercial activity, they are thereby expressing approval, which they cannot be compelled

to do. You know, it is a decision with kind of frightening implications.

And in her dissent, which I thought was quite moving, Justice Sonia Sotomayor, an Obama

appointee who votes with the liberals, wrote about, you know, instances of kind of

heartbreaking discrimination.

She talked about a gay couple who had been together for many years.

And when one of them passed away in their grief, they were confronted with a funeral

home. This man, this grieving husband and his his family was confronted with a funeral

home, and they opposed the funeral of his husband because they didn't want to suggest

approval of a gay lifestyle.

You know, I think that what will ultimately happen is that this court will get a case

that they don't like.

They will say, oh, no, you know, discriminating against an interracial couple goes too far

or discriminating against families with adopted children goes too far.

And it will be a matter not of legal protections and civil rights, but of them

retrofitting the law around their personal preferences, which is a problem.

visceral accord, perhaps, but it will affect many, many lives.

And that is on the plan that Joe Biden had to relieve student debt.

I mean, what a huge issue for Democrats.

Very important as part of mobilizing the coalition that elected Joe Biden, bringing in

hold up. They're blocking that.

They're agreeing with the lower court that that was not within their congressional

millions of Americans now hold $10,000 more debt than they did yesterday, or about

one tenth the cost of a private plane trip to Alaska, referring there to those

allegations against Supreme Court Justice Samuel Alito, who is said to have been on

the receiving end of high dollar hospitality and travel, including private jet travel

. So that's going to really hit people in their pockets.

It's a very direct slapdown of a decision made by an elected official, namely the

president. What was the legal argument there that the court majority deployed to

strike down the move on student debt and effectively make a whole lot of Americans

more indebted than they were before?

is called the HEROES Act, which is a post 9-11 bit of legislation that gave extensive

powers to executive branch administrative agencies, including the Department of

Education, to do things to change their own financial arrangements in moments of

national emergency.

And one of the things that this act does is give the secretary of education really

expansive power to nullify or alter student debt in moments of a national emergency.

Well, COVID was a national emergency and President Biden used the national emergency

to direct his secretary of education to forgive up to $10,000 in student and federally

backed student debt for ordinary borrowers and up to $20,000 for the recipients of Pell

Grants, who are people who go to college usually from a marginalized or impoverished

background. But the Supreme Court used a novel, new and very ill-defined legal

understanding called the Major Questions Doctrine.

And it is an idea that executive agencies like the Department of Education do not have

the authority to make decisions on something that are of great political importance.

And who decides what is of great political importance?

Well, the Supreme Court does.

Right. So the Supreme Court has granted itself through this novel legal theory, the

authority to just sort of nullify actions of an elected branch.

authority, who is guilty of an overreach of executive power in this case.

And that's a perennial, isn't it, with, I mean, you had it as an argument that ran over

Obamacare, the notion that the executive branch, Barack Obama in that case in

healthcare, had overreached his power.

And that's what sort of conservatives, either on the court or even in Republicans in

Congress, they're constantly making that argument, you know, beyond the sort of more

subtle jurisprudential points.

Is that essentially the core of the argument that the six conservative or right wing

judges on the court are essentially making, which is, you know, putting a constraint on

executive power based on who that executive is.

So during the Trump administration, there was a case called Trump versus Hawaii, which

was a state challenge to Trump's Muslim ban.

We don't want them here.

immigration ban on anybody coming into the United States from a small list of Muslim

majority countries.

I think it was seven nations.

And the Supreme Court said that Donald Trump had the authority to make that claim, that

that was a bit of policy power that was within the purview of the executive, right?

So Joe Biden can't make unilateral immigration policy changes that, you know, are

certainly quite controversial.

But Joe Biden can't make debt policy changes that are controversial.

You know, it's a it's a theory of executive power that changes based on the party of the

executive.

So how do the Democrats respond to this big agenda and big slew of decisions by this

court, striking down often cherished parts of the sort of political settlement in the

United States so far?

I mean, what are the signs for how, for example, the president, the Democratic

president, what is his response to the decisions that have come down so far, including

this student debt decision?

administration more broadly, has been really muted, inconsistent, surprisingly tepid on

abortion.

Joe Biden is has not been a sufficient ally.

He said recently, I'm not big on abortion, which I think, you know, a lot of abortion

rights advocates will say, yes, we've noticed he has sort of gained a little bit

more attentiveness to the issue this term.

He was willing after the Supreme Court's affirmative action decision eliminating

race conscious college admissions policies to say, you know, this is I think his

phrase was not a normal court.

And, you know, it seems like a increasing amount of willingness to acknowledge that,

you know, this is a Supreme Court that will unilaterally veto any substantial policy

progress that the Biden administration wants to make.

providing relief for working class, middle class Americans.

intervention or solution or really even conversation about how to solve this

problem that is, you know, increasingly threatening American democracy.

You know, after the affirmative action decision, even though he was willing to

call the Supreme Court, you know, quote unquote, not normal, he also immediately

shut down any questions about court expansion, the theory that, you know, the

president has constitutionally the ability to add more justices to the Supreme Court.

So why don't you?

He said, no, no, no, that would politicize the court.

And I think that people who have lost their right to an abortion, who have lost

their right to be treated equally in commercial life, who have lost the ability

to be their full selves in college admissions and to try and get access to that

education, who have now been saddled with more debt.

I think those people would say, you know, it's already kind of political.

I mean, I think already Joe Biden has come back with some specific sort of policy

response on the student debt point.

student debt relief to as many borrowers as possible, as quickly as possible.

We will ground this new approach in a different law than my original plan, the

so-called Higher Education Act.

suite of options, if any, that Democrats can resort to to fight back, one of them is the

thing we talked about on this podcast very soon around the Dobbs decision.

And in fact, leading up to it, I think the notion of, as you say, expanding the court.

So you do create more seats on the court.

And that way you can have, you know, a Democratic president, Democratic Senate at

the moment, put some liberal judges on the court.

I mean, you just told us that Joe Biden does not like that idea.

Absent that, apart from some very, very long term fixes, I'm just wondering what is

available. I say long term because in a way you think about what the Republicans did.

You know, they were planning for decades to get them to make sure they had Republicans in

the Senate and in the White House at the same time who were minded to put conservatives

on the court. And all their dreams came true at once when Donald Trump was president and

they got not one, not two, but three conservative judges on the court.

And that was the fruit in some ways of 30, 40 years of organizing by Republicans.

Do Democrats now need to think like that?

And if they do, do they have that much time to do it?

Just tons of people will experience incalculable suffering because of this court.

That is a terrible fact and I think a shame that we have to live with.

But there are options to mitigate how terrible this could become.

Right. So aside from court expansion, there are a number of opportunities for court reform.

There is, you know, expansion is historically thought of as politically unpopular because it

generated a bit of political backlash the last time it was proposed when FDR found that the

court was blocking all of his New Deal programs.

He threatened to add seats to the court.

The public didn't like that, but it also changed the court's behavior.

That was almost 100 years ago.

I think the politics have shifted and there is an option to repoliticize the number of seats on

the court and to make it clear to the American public that that is not, you know, it is not

fixed by God at nine.

It is not a policy choice to have it be nine.

It could be more.

But, you know, there are other options as well.

There's a lot of popular support for term limits.

These are people who are not elected, who have no accountability, formal accountability

measures that are really accessible while they are in their seats on the court and who can't be

removed.

They either have to voluntarily retire or die.

There's there's no way to get somebody off the court aside from an act of God.

And the public doesn't like that.

They think it breeds corruption.

They've seen that it brings corruption with the reporting we've seen over the past year.

The Supreme Court did not used to have as much independence and power as it does, they now

choose which cases they are going to hear and they have basically absolute discretion to choose to

or decline to hear it.

That was not always so for a long time in America's history.

It was Congress that decided what the Supreme, what cases of the Supreme Court was going to

hear. We could, you know, take back control of certiorari and and give that back to the elected

branch. There is an option to do something that used to be done where the justices would, quote

unquote, ride, ride circuit, which means that they would go and serve on lower courts.

And, you know, possibly even we could have a system in which judges from lower courts come and

serve some time temporarily as Supreme Court justices.

You know, there's lots of ways that this institution can be changed to make it more responsive

to the democratically elected branches and more in line with the values of the American

But just explain to us what it would take.

I mean, who would have to agree with that?

The presidency, but also the House and the Senate all to be on board to make even the change,

for example, like term limits, because it will require a tweak to the Constitution.

You'd have to have the approval of state legislatures and assemblies all around the country as

well. It's a big and hard ask, isn't it?

It would really be a problem of the Senate.

And yeah, it would require votes that aren't there right now.

So this is a political project, you know, public opinion, the behavior of senators.

These things aren't set in stone.

They are shaped by circumstances.

And what we really need to start seeing is a national conversation on the left, led by

figures of authority like Joe Biden, who have the bully pulpit, to really reckon with what

this court has become and start to talk about the emergency, about what's going to happen

to American lives, what's already happening to American lives because of this court's

unchecked power. You know, we're not powerless.

We can change the way people think about this.

We can change the way they vote about it because we can engage them in a discussion of this

reality. That's the kind of leadership that's just not coming from Joe Biden right now.

among their leaders when they were held them for two, three, four decades to overturn

abortion rights. They did approach it.

It was a completely different intention, but with the kind of clarity that you're

describing. I'm just wondering to put ourselves in the heads of Joe Biden and his team in

the White House. I mean, they will understand the conundrum.

They will get the problem.

Presumably they don't want to go near all this stuff because it's very easy for this to

be cast as a sort of extreme or radical to be messing with the Supreme Court.

And they are all about winning over those independent or moderate voters, swing voters,

swing states in 2024, who often tell pollsters they don't like that stuff.

They didn't like it when they thought that Trump was riding roughshod over the

constitution. And it could easily be cast that this would be Joe Biden doing the same

thing. Yeah.

particularly in the Democratic Party, the idea that there's a middle, a middle that left

the Democrats and can be won back.

And the fact of the matter is that that's just not empirically borne out.

There's not much of a middle in America anymore.

The people who approve of what the Supreme Court is doing are already voting for the

Republicans and they're not going to be won over back to the Democrats.

What you do have, in fact, is a depressed Democratic base, people who vote year after

a year and don't see any policy changes.

They see their rights and freedoms just being taken away over and over again because the

Democrats are afraid of power and unwilling to make these bold stances.

So I think there's two political sides to every decision that the Biden administration

makes. I think they're weighing the idea of turning people off who approve of the

constitutional arrangement a little too heavily and undercounting the desire of people

who've been disenfranchised, hurt, made less free by this court to see some leadership

and to have a defender.

Court, the next year or so, will be more decisions of this kind.

cases it's going to hear in the coming term.

And I think one that really alarmed a lot of people and particularly a lot of feminists

was a case in which the Supreme Court will determine whether it is constitutional for

men who have been found guilty of abusing their wives and girlfriends to own guns.

This is a longstanding federal law that prohibits gun ownership by people with domestic

violence restraining orders.

And it is shown to save lives.

You know, men who have access to guns, who abuse, are much more likely to shoot and kill

their victims.

And if the Supreme Court decides that it is unconstitutional for those men to lose their

right to carry firearms, I think that will it's not it's not an exaggeration to say that

that will be a death sentence for thousands of American women.

You know, it could get much worse before it gets better.

this podcast, something very different.

I want to ask you about Twitter because you tweeted your new Blue Sky account recently.

Why you did that and whether that's because you're making a judgment that Twitter has

had its day.

And, you know, with these changes that happened in the last few days, the you know, the ownership

of Elon Musk, why don't you tell us what prompted you to announce that you're perhaps moving

your social media activity elsewhere?

It is something to which I owe, you know, much of my career is to Twitter.

And since Elon Musk purchased the site and fired many of its engineers and changed its

terms of service, you know, the functionality of the site has really deteriorated.

Last weekend, it sort of stopped working entirely.

It seems to be somewhat back.

It is prioritizing a very specific ideology and sort of low quality content.

There's a lot of, you know, in the replies to my tweets, it's people trying to sell you

crypto and bots posting pornography.

You know, it's become less useful and it's not clear what, if anything, will replace

it.

I'm on Blue Sky.

You can find me there.

I'm having fun.

It hasn't quite gotten off the ground.

It doesn't have anything like the user base Twitter does.

Facebook has recently announced that it is launching a competitor, which I believe is

called Threads.

But Threads has, you know, Facebook style data collection that does not comply with

German law.

So its ability to launch in the EU and become a truly global brand seems kind of dubious.

You know, it's not clear that anything will replace Twitter.

But in the meantime, you know, I'm going outside a lot.

I'm touching grass.

I'm going on hikes.

I'm enjoying a less online life for the time being.

America.

Moira's new podcast, In Bed with the Right, which looks at how the right sees sex and

gender, will be out next week.

So search for that wherever you get your podcasts.

And make sure to listen to Thursday's episode of our sister podcast, Today in Focus, as

my colleague Sam Levine explains more of the ramifications of last week's Supreme Court

decisions and how they might influence 2024.

Lastly, I want to direct you towards Guardian Jobs.

Guardian Jobs specialises in high quality roles in sustainability, government, social

care, charity, education.

You'll be spoilt for choice.

So search Guardian Jobs to find what could be your next big role.

But for now, it's goodbye.

The producer is Danielle Stevens, with help from Hannah Abraham and Holly Chaxfield.

The executive producer this week was Max Sanderson.

I'm Jonathan Friedland.

Thanks, as always, for listening.

This is The Guardian.