The Washington PostDemocracy Dies in Darkness

Opinion The skirmish is over a new justice. The battle is against the right wing’s imperial judiciary.

President Biden at the White House on Jan. 27. (Yuri Gripas/Abaca/Bloomberg News)

On July 26, 2000, a prominent U.S. senator took the floor to condemn what he called the “imperial judiciary.”

He argued that the “judicial activism” that liberals were regularly accused of was standard operating procedure for the right: “It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own for that of the Congress and the president.”

More than two decades ago, this senator even seemed to anticipate the Supreme Court’s overreach this month in misreading — or not reading — the Occupational Safety and Health Act to overturn the Biden administration’s vaccine mandate for private employers.

“This Supreme Court,” he said in 2000, “is seizing the power to make important social decisions that, under our constitutional system of government, are properly made by elected representatives who answer to the people, unlike the court.”

“What is at issue here,” the senator declared, “is the question of power, who wants it, who has it, and who controls it.”

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The voice in question is that of Joe Biden. The prescience of the future president in anticipating the dangers an arrogant right-wing Supreme Court majority would pose to democracy explains why the coming debate over a successor to Justice Stephen G. Breyer is so important.

A new justice will not dent the court’s majority of Republican-appointed justices. But the coming weeks will provide an exceptional opportunity to underscore the imperative of fighting back against ideologues in robes. They are ready to do further damage to voting rights and to eviscerate the government’s ability to protect Americans through economic, labor, environmental and health regulations.

Their eagerness to rip up precedents — the next sally, it would appear, will be on affirmative action — speaks to a flight from one of conservatism’s most valuable virtues: prudence.

The fact that the new justice will be replacing Breyer makes an offensive against a power-hungry judiciary particularly appropriate.

The retiring justice was one of the most forceful advocates of a jurisprudence that put a premium on respecting the democratically elected branches of government. His alternative to the theory of “originalism” that conservatives use to rationalize their backward-looking rulings was a concept Breyer called “active liberty.”

Breyer argued that a focus on “the Framers’ original expectations narrowly conceived” missed their basic intention: “to create a framework for democratic government — a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively.”

This explains why Breyer dissented so passionately in the vaccine case.

“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from covid-19?” Breyer wrote. “An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”

Sounds an awful lot like the Joe Biden of 2000, doesn’t it?

It’s certainly true that the battle for a new justice provides short-term political advantages for Biden. His party has been broadly united on his picks for the judiciary up to now, so he has a good chance of a major victory after setbacks on voting rights and his social program.

And in keeping his promise to name a Black woman to the court, Biden will rally core supporters even as Republicans embarrass themselves by criticizing Biden for identifying the race and gender of his future pick.

Ronald Reagan, after all, kept his pledge to name a woman to the Supreme Court. The single difference between Reagan’s promise and Biden’s is pretty obvious, isn’t it? It’s not a good look for the GOP, especially because the jurists on Biden’s shortlist have enormously impressive records. Don’t the Republicans have enough problems around race already?

In the meantime, the Republicans’ stale rhetoric can only bring home the point Biden made years ago. Typical was Thursday’s statement from Sen. Thom Tillis of North Carolina. He warned Biden against “catering to the far-left by selecting a nominee who will legislate from the bench and push their preferred liberal policy objectives.”

Sorry, Senator. The folks “legislating from the bench” in the name of their preferred policy objectives are members of the current conservative majority.

Whether it’s Justice Samuel A. Alito Jr.’s wholesale rewrite of Section 2 of the Voting Rights Act last year (“No matter what Congress wanted, the majority has other ideas,” Justice Elena Kagan wrote in her brilliant dissent), the court’s destruction of decades of precedent on campaign finance law, or its ignoring the plain text of the Occupational Safety and Health Act, the judicial right’s message is consistent: We should run the country.

Senator Biden was right then to call out conservative judges for dealing “telling blows to our ability to address significant national problems.” Maybe now, the nation will listen.

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