Full Court Press

A letter to the editor of the London Review of Books:

Frederick Wilmot-Smith writes about prospects for the Supreme Court in the wake of Ruth Bader Ginsburg’s death (RBG’s Big Mistake, LRB, 8 October). The immediate worry is that the radical conservatives on the court will now decide that the Affordable Care Act is unconstitutional and overturn Roe v. Wade. But this is only the beginning. Republicans have been packing the federal judiciary for decades with judges who can be counted on to undermine the power of government in order to advance the agenda of the Republican Party.

Congress should enact laws overriding anti-democratic decisions made by the Supreme Court and codifying the rights of the people. It could, for example, pass a National Voting Rights Act giving every citizen over the age of 18 the right to vote, requiring uniform voting procedures for every state and every election, making each federal election day a national holiday, controlling partisan gerrymandering, extending the time available to complete the 2020 census, and putting in place procedures to protect the voting process. It could also pass a National Policing Code to establish uniform policing procedures and standards throughout the US, and to guarantee every person in the country fair treatment by the police; a National Gun Control Act that would implement reasonable regulations for gun ownership and usage, and ban automatic weapons; a National Marriage Act, guaranteeing the right of two people to marry in every state; and a National Reproductive Rights Act.(Emphasis mine - JG)

All of these could be ruled unconstitutional by activist conservative justices on the grounds that Congress does not have the power to enact such laws. Many incorrectly believe that it would be necessary to amend the constitution in order to change the balance of power between Congress and the Supreme Court. Congress, however, has at its disposal many methods, expressly authorized by the constitution, that would enable it to confront the court, including restructuring the federal judiciary and limiting the types of case that may be heard by the courts. Perhaps the most important tool is the assertion of its own power to interpret the constitution, particularly under the post-Civil War 13th, 14th and 15th Amendments. Each of these expressly grants Congress ‘the power to enforce, by appropriate legislation, the provisions of this article’.

If the Democrats win an emphatic victory in November and then Congress takes strong action to define and enforce the rights of the people, some fear that the Republican Party will just undo or counteract those actions when they return to power. To that I say, don’t be afraid. Once rights are granted to the people, whether by the judiciary or Congress, they do not willingly give them up. Living in a democracy requires every generation to fight for its rights.

Ray Kwasnick
Boston, Massachusetts