No. 2

The Supreme Court Shouldn’t Get the Last Word

What if we ignored it?

Braxton Brewington

The U.S. Supreme Court building on Feb. 25, 2022, the day President Joe Biden announced Judge Ketanji Brown Jackson as his nominee for the Supreme Court. Photograph by Ting Shen/Xinhua via eyevine/Redux.

One silver lining of the 2023 U.S. Supreme Court term was that the court upheld Section 2 of the Voting Rights Act, ordering Alabama to redraw its congressional map with an additional majority-Black district. For the first time since Reconstruction, Black Alabamians were on track to have representation finally parallel to the state’s racial makeup. But advocates’ celebratory cheers were short-lived. Weeks after the ruling, Republicans flat-out ignored the Supreme Court order, drawing a congressional map with only one majority-Black district. In a bold act of defiance, Gov. Kay Ivey, a Republican, said, “The Legislature knows our state, our people, and our districts better than the federal courts.”

A three-judge trial court will review the new map, but through appeals to the Supreme Court, Alabama may try to run out the clock until the 2024 election has passed, essentially handing the state’s Republicans another free election with an illegal map. Conservatives have made it plain that they will respect the judiciary only until the moment it threatens their power. So in the face of the Supreme Court’s assault on basic civil rights — from undermining education to gutting reproductive health care to hampering democracy — why should the left succumb to the harsh reign of judicial supremacy? The next progressive demand in the wake of an egregious ruling may need to embrace “popular constitutionalism,” a political legal strategy that refuses to allow the Supreme Court to have the last word on the Constitution’s meaning, and ignore certain rulings altogether. Backed by the popular support of the American public and leveraging the power of his bully pulpit, President Joe Biden could mitigate the damage of a flagrantly antidemocratic court ruling by asserting a differing interpretation of the Constitution for the sake of preserving our rights.

According to the liberal democratic ideal, the Supreme Court is supposed to call balls and strikes — an umpire ensuring that everyone plays by the legal rules. While the court has never been a neutral arbiter of justice, today it plays pitcher and batter, too. Three of the court’s justices were scandalously brought onto the bench by a president who lost the popular vote and were confirmed by a Senate body that’s disproportionately skewed by Republican votes. Since then, they have carried out a deeply harmful political agenda, overturning well-settled laws that did everything from protecting labor unionizing to protecting the environment. The court has recently escalated its use of the shadow docket, which, as Stephen Vladeck writes, sinisterly makes new laws that advance conservative agendas while shielding themselves from scrutiny or having to fully engage with a case’s merits. We can see this dynamic of corruption, disregard for ethics, and an unhinged conservative political agenda play out clearly with the ruling striking down student debt relief.

Debt abolition activists achieved what was once thought impossible in August 2022. After years of intense political pressure from the left led by the Debt Collective, the union for debtors that I organize with, Biden announced a policy cancelling up to $20,000 in student debt per eligible borrower — the largest transfer of household wealth in recent American history. If every eligible debtor applied and was granted relief, an estimated $430 billion in debt would disappear. Nearly 20 million people would have their debt completely zeroed out, disproportionately lifting Black, Hispanic, and low-income Americans out of financial despair.

My collaborators and I at the Debt Collective took a quick victory lap around the pundits and politicians from both major political parties who had peddled false narratives about why debt abolition couldn’t be done for years. We also made it clear that $20,000 was far from enough and that we would keep pressuring Washington to deliver on the remaining $1.3 trillion in student debt.

We knew we’d punched a hole in the wall of what Andrew Ross, one of our co-founders, calls a creditocracy — an economy where the revolving door of debt payments endlessly rotates. Such a debtor- and creditor-based economy couldn’t have been built without bank-friendly politicians like Biden himself, a man once dubbed the “Senator from the MBNA” by the conservative National Review. Throughout his long career in the Senate, Biden opposed free college and championed bills that stripped student debtors’ bankruptcy protections. It is all the more impressive that a strategic and militant movement of debtors pushed him to acknowledge that they need and deserve relief.

But in the last ruling of the 2023 term, Biden v. Nebraska, the U.S. Supreme Court — with the help of dark-money organizations, bad-faith plaintiffs, and Republican state attorneys general — tried to patch up the wall activists had just punctured. Biden’s relief plan relied on the HEROES Act, a 2003 law that grants the secretary of education the ability to “waive or modify any statutory or regulatory provision” related to student loans in the event of a national emergency. In a 6–3 ruling, the conservative majority invoked a recently fabricated legal theory called the major questions doctrine to suggest that eliminating from $10,000 to as much as $20,000 for approximately 43 million borrowers each was a more “significant” presidential intervention than Congress could have intended in passing the HEROES Act. But the executive action’s significance — like the onset of the Covid-19 pandemic — was exactly the point. In a scathing dissent, Justice Elena Kagan wrote plainly that the court “violate[d] the Constitution” in its gross overstep into the role of the executive branch and “exercise[d] authority it does not have.”

The ruling, though unsurprising, was still infuriating. I had co-authored a research paper exposing the fallacious chain of claims at the heart of the case. A party seeking to remedy their supposed injury must persuade the court that they themself was harmed — a skin-in-the-game standard called standing. But in Biden v. Nebraska, the Supreme Court contravened this bedrock principle of judicial law by granting standing to the state of Missouri, which was suing on behalf of the student loan servicer MOHELA — something the court had not previously allowed any plaintiffs to do. And they did so on the basis of a made-up harm. The plaintiffs falsely asserted that MOHELA would lose revenue as a result of Biden’s relief program — a claim no one bothered to check because no court conducted the evidence review process known as discovery.

This ruling hit me — and my wallet — personally. The average Black college graduate owes around $50,000 in student debt — almost twice that of our white peers — and I was no exception; I now owe tens of thousands of dollars in student debt. I was eligible for Biden’s broad-scale relief and had already applied for it and been approved before the court’s ruling foreclosed on my family’s future.

As a Black North Carolinian, I’ve had a front-row seat to other aristocratic power grabs by the Supreme Court. In 2017, when I was an undergraduate at North Carolina Agricultural and Technical State University, the largest HBCU in the nation, the Republican-controlled General Assembly gerrymandered electoral maps that split the campus in half, defying the guidelines to keep “communities of interest” whole. At the time I was a student organizer with the state chapter of Common Cause, which had already filed a lawsuit to fight antidemocratic efforts to quell Black and Democratic voices. But the Supreme Court opted to leave the rigged maps in place for a fourth consecutive election in 2018.

The court’s affirmative action decision, issued the day before Biden v. Nebraska, had also been a blow. In joint cases with Harvard and the University of North Carolina at Chapel Hill as defendants, the Supreme Court struck down race-conscious admissions programs for universities, as if the days of structural racism were now magically behind us. (Tellingly, military academies were carved out as an exception.) In her dissent, Justice Ketanji Brown Jackson described two hypothetical scenarios: Both John and James can trace their North Carolina roots back generations, and “both want to honor their family’s legacy by attending the state’s flagship educational institution.” She continued, “John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black…. Recognizing this aspect of James’s story does not preclude UNC from valuing John’s legacy or any obstacles that his story reflects.” I’m a Black graduate student at UNC whose ancestral trajectory mimics James’, and Jackson’s scenario hits home. The court’s ruling, though, hits harder.

Members of the U.S. Supreme Court pose for a portrait on Capitol Hill. Photograph by Erin Schaff/The New York Times via Redux.

Over and over again, the Supreme Court has written over the American social contract, erasing marginalized voices and elevating corporate powers and their foot soldiers. At best, Chief Justice John Roberts has mistaken himself for a congressman who holds a gavel. During oral arguments on the student debt case, he asked whether cancelling student debt would be “fair” to people who took out loans to start a small business, conveniently forgetting that almost $800 billion of Paycheck Protection Program loans were virtually all erased since Covid. In his opinion on affirmative action, he wrote that classifying students by race in 2023 was “simply too pernicious.” Liberal dissenters shot back in both of the cases, with Kagan writing that the court has appointed itself the “arbiter” of political disputes and Jackson decrying how the court “pitifully perceiv[es] itself as the sole vanguard of legal high ground,” Don Quixote–style. Whether it’s the Supreme Court’s demolition of democracy in preserving gerrymandering, upholding of creditocracy by dismantling student debt relief, or blessing of structural oppression by ending affirmative action, these antidemocratic decisions are growing too common. People like me, a young nonwhite voter in a swing state, need a response from the executive branch motivated by a deep sense of moral righteousness equivalent to the scale of harm currently being inflicted.

The day before the justices halted debt relief, they sided with a homophobic website designer who used religion to justify her refusal to make a nonexistent gay couple a wedding website no one asked for. Now that such bigotry has been green-lighted, Texas litigation efforts to halt gay marriage race ahead. When the Supreme Court demolished the long-held right to an abortion in 2022, it put mostly low-income women at risk of inadequate health care, incarceration, and death. Justices have restricted the EPA’s authority to tackle climate change, stripped labor rights, given a thumbs-up to antidemocratic practices such as racial and partisan gerrymandering, and more. And the forecast for the 2024 docket looks treacherous, too.

Should the Supreme Court continue pushing to the far right, it could kill the Consumer Financial Protection Bureau, which holds corporate profiteers accountable, and end the consumer protections the agency enforces along with it. Social Security, the U.S. Postal Service, and other essential programs won’t be immune either. The court could limit the enforcement authority of the U.S. Securities and Exchange Commission and other federal agencies working to prevent market manipulation or fraud. It could even expand gun possession rights for domestic abusers. It might preemptively ban a federal wealth tax, delivering a massive windfall to wealthy investors and upending our tax code at a time when our nation should be returning to an Eisenhower-era top marginal tax rate to help lower the cost of public goods.

The Supreme Court’s rulings and the cases it hears aren’t random. They are the deliberate outcome of a world in which billionaires can bring cases before the justices they bribe. Justice Clarence Thomas has had secret financial arrangements with right-wing billionaire Harlan Crow, accepting luxury superyacht trips and private jet flights from Crow “virtually every year” without disclosing them. Justice Samuel Alito took grand trips funded by the conservative billionaire Paul Singer, a GOP mega donor “who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes,” reported ProPublica. Crow and Singer each had ties to the lawsuit that halted student debt relief, among other business before the court. For decades, a gang of billionaires have purchased access to the Supreme Court, including GOP contributor David Sokol, who, four months before oral arguments in Biden v. Nebraska were even heard, foretold in a speech that relief would be “overturned by the Supreme Court.” These unethical dark-money activities come as little shock given that more than a decade ago the Supreme Court — the only federal judges not bound by a code of conduct — gave billionaires and corporations a green light to funnel unlimited amounts of funds into elections via the Citizens United decision.

The intense corruption throughout the court combined with the harm its rulings cause demands nothing less than an intervention by the other two branches, fast. But so far, Republicans have practically cheered the court on. Meanwhile, Democrats have been slow to act, refusing to wield anything close to the full potential of their power even to protect the communities sending them to Congress. As of 2022, 75 percent of Americans lack confidence in the Supreme Court; for Democrats, it’s 87 percent. Keeanga-Yamahtta Taylor wrote in 2020 that the Supreme Court is inherently undemocratic, unaccountable to the American public, and clearly on the side of the elite and called for ending its corrosive role in society. Justice Kagan might even agree, writing in her Biden v. Nebraska dissent that the court has become a “danger to a democratic order.”

Balancing the judicial scales — whether through abolition, expansion, or other reforms — will require congressional action, but the legislative branch is desperately in need of its own structural changes. We the people seem to be locked in a cage of judicial tyranny — but it opens with a key we already hold in our pocket. As Alexander Hamilton wrote in The Federalist Papers, the Supreme Court commands no armies, nor does it hold purse strings. It derives its power from the legitimacy we voluntarily bestow upon it. Such legitimacy can be withdrawn when the power is misused. The sensible response to such egregious rulings would be to ignore them. Until our democracy can adequately check judicial power or abolish the court, the executive branch should engage in a type of political disobedience by refusing to enforce unjust opinions.

This isn’t far-fetched — we almost reached this panicked point a few months ago. Back in April, a Trump-appointed district judge in Texas sided with anti-abortion groups and restricted mifepristone, an FDA-approved medication that has helped millions safely end their pregnancies. Senator Ron Wyden, a Democrat from Oregon, came out swinging, calling on the FDA and the Biden administration to “ignore this ruling” and for pharmacies and doctors to “go about their jobs like nothing has changed.” He wasn’t alone: Democratic Representative Alexandria Ocasio-Cortez of New York concurred, telling CNN that Biden “should ignore” this judicial overreach, adding that the ruling “relies on enforcement, and it is up to the Biden administration to choose whether or not to enforce such a ruling.” Even Nancy Mace, a South Carolina Republican, declared her support for the Biden administration “ignoring [the ruling] at this point” and said it “should just be thrown out, quite frankly.” Luckily the U.S. Supreme Court blocked the lower court’s order to halt distribution, keeping mifepristone available for now. But what if it hadn’t? What if these conservative legal attempts succeed next year? What innovative political or legal responses are ready to go to keep health care accessible? What organized base — and who in Washington — would push the Biden administration to take such a necessary step?

When the Supreme Court struck down abortion rights, Biden’s response was a tepid whisper — and a delayed one at that. With nearly two months’ advance notice due to a leaked opinion, he had ample time to prepare action. Instead he blamed activists and stopped short of bolder proposals like declaring a public health emergency. But this type of movement demand is possible. A year later, Biden’s response to unfavorable court rulings was different, announcing a second attempt at delivering student debt relief hours after the Biden v. Nebraska decision. What was the difference? Pressure from the left demanded a response in line with popular constitutionalism by calling for debt relief no matter how the court ruled. Now imagine what increased pressure and a larger movement critical of the court could do the next time it oversteps its authority.

A majority of the justices on the Supreme Court seem eager to curtail civil rights for anyone not white, male, and worth billions. To counter it, we need an executive branch willing to fight for all of us and put a check on the court’s unjust rulings by refusing to cede the power that enables its reign. This type of political disobedience isn’t unprecedented. In 1862, in direct violation of the majority decision in Dred Scott v. Sandford finding that enslaved people were not citizens, President Abraham Lincoln signed a proclamation banning slavery in all states in rebellion. He then went further, launching an overt political attack on the fundamental power of the Supreme Court to determine the law — and rightfully so.

Interviewing Ocasio-Cortez on CNN, Anderson Cooper shot back at the idea of ignoring the court: “Do we want to live in a world where a government can decide to ignore a federal court ruling?” That world already exists and has historically been used for evil more often than not. After Brown v. Board of Education, Virginia’s Prince Edward County refused to obey the court order to racially integrate and instead shut down its entire public school system for half a decade. It’s a long tradition: When Chief Justice John Marshall ruled that President Andrew Jackson’s racist Georgia license laws against the Cherokee Nation were unconstitutional in Worcester v. Georgia, Jackson went ahead with the forced displacement of Native Americans from Georgia and other states that became the Trail of Tears, mocking Marshall’s lack of enforcement power. Sadly, it takes little imagination to consider a President Trump or DeSantis defying a hypothetical liberal-packed Supreme Court. If we demand it, the other side of that coin can be a safeguarded republic that affirms civil rights, upholds democracy, and isn’t stymied by nine people in robes.

There is already precedent for ignoring the court, and white supremacists are mostly the ones who have set it. Now it’s time that the folks actually fighting for justice create some new precedents for good and necessary trouble.

Braxton Brewington is a community organizer and spokesperson for the Debt Collective.

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