Justice Sonia Sotomayor, one of the three lonely liberals on a Supreme Court with a right-wing supermajority, confessed in a speech last month, “There are days that I’ve come to my office after an announcement of a case and closed my door and cried.”
Friday surely was one of those days. The court issued the latest in what’s become its legacy of landmark rulings smashing generations-old precedents on women’s, voters’ and workers’ rights, on gun safety and the environment, on criminal justice and against political corruption. The Republican-appointed justices continued to undermine the legal cases against Donald Trump for the unprecedented act of trying to overturn an election, including two justices, Clarence Thomas and Samuel A. Alito Jr., with conflicts of interest suggesting a clear bias toward him.
Opinion Columnist
Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
But if Sotomayor was teary on Friday, she had company in her misery. Lots of it. Americans nationwide — Democrats mostly, but small-d democrats, too — weren’t bewailing the new court decisions so much as they were suffering a political hangover: the realization that President Biden’s wretched performance in Thursday night’s presidential debate made it all the more likely that Trump might return to the White House.
And the two things, the court’s opinions and the presidential debate, are sadly related.
Biden bombed and the justices demonstrated anew why voters should consider that the federal judiciary is also on the ballot in 2024 — and why they shouldn’t re-empower Trump to pick judges and or give Republicans control of the Senate that confirms them.
After all, Trump has already named one-third of the Supreme Court, providing the margin that overturned Roe vs. Wade just as he’d promised in 2016 (and boasted in the debate). Likewise, he appointed a sizable number of lower-court judges, including U.S. district court judges Aileen Cannon in Florida, who has all but sabotaged the government’s classified documents case against Trump, and Matthew Kacsmaryk in Texas, who sought to ban abortion medication nationwide.
On Friday, business and anti-government zealots got a victory they’ve been coveting: The six conservative justices overturned a 40-year-old unanimous ruling that had established the so-called “Chevron deference” doctrine, which held that when laws are ambiguous, courts must defer to the federal agencies charged by Congress with enforcing those laws. This reversal is nothing short of a power grab for unelected judges, grabbing from expert bureaucrats answerable to elected presidents.
It’s impossible to overstate how damaging this ruling likely will be to governance as we know it, specifically to protections against financial fraud and for clean air and water, safe food and drugs, quality healthcare, worker rights and more. In the liberals’ dissent, Justice Elena Kagan predicted “large scale disruption” — just as the court has disrupted healthcare for pregnant women and enforcement of gun limits with its precedent-shattering radicalism.
Yet it’s all but impossible to make voters understand or care when the issue is the government regulatory process (bor-ing) and the consequences are hypothetical. You know who does care, deeply? The Federalist Society, the Heritage Foundation and right-wing dark-money donors for whom overturning Chevron and gutting the dread “administrative state” was a much higher priority than reversing Roe. The whole cabal worked to that end to get sympathetic deregulators Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett onto Trump’s short list of prospective nominees and then to the Supreme Court.
The court’s record has made a mockery of Republicans’ past demands for “judicial restraint,” dating back to when the balance of power was more moderate, even progressive. In other decisions Friday, the court held that local governments can make it a crime for the homeless to sleep in public, and threw out felony charges of obstructing Congress against hundreds of insurrectionists who stormed the Capitol in 2021.
That raised questions as well about two Jan. 6 charges against Trump. But coming Monday is the court’s long-awaited decision on whether Trump as a former president has legal immunity from the Jan. 6 and classified documents charges. Already the justices’ delay has ensured he won’t be tried before the election.
Against this sorry backdrop of judicial news, almost all attention was on Biden and his failure in the debate to reassure his party and the nation that, at 81, he is fit to serve a second term. Trump proved his unfitness in other ways on the stage — blatantly lying about his economic record, Jan. 6, immigration, election fraud, Democrats’ alleged support for execution-style abortion of full-term babies and a four-star general’s eyewitness account that Trump called fallen service members “suckers” and “losers,” among dozens more falsehoods. Also, he dodged repeated questions about whether he would accept the election result this time, no matter who wins.
But what was shocking — after all, Trump no longer shocks — was Biden’s inability to effectively fact-check his rival’s lies, or to express what were often cogent arguments other than in an oddly weak, raspy voice and with a vacant, mouth-agape look that screamed “old.” He trailed off in mid-sentence, ending at one point, flummoxed by the buzzer, with a puzzler: “We finally beat Medicare.” Yikes.
Predictably, Democrats rushed to what former Obama advisor David Plouffe called “a DEFCON-1 moment” minutes into the debate. They continue to ponder how to get Biden to step aside (unlikely), whether he could be replaced atop the ticket (ditto) and, absent those scenarios, how to limit the down-ballot damage for Democrats.
Friendly pundits called on Biden to go, and I am sorely tempted to join but for the impracticality and likely counterproductiveness of opening the Democratic convention in August to pick … whom? Many Democrats don’t favor turning to Vice President Kamala Harris, yet to spurn her could be catastrophic in a party that counts Black women as a pillar.
I’ve been shaken from my cautious optimism that Biden can vanquish Trump. That’s scary. The stakes could hardly be higher, perhaps most of all for the courts. Judicial appointments are a president’s longest-lived legacy — as we’ve already learned from Trump’s single term, alas.
