The Supreme Court is seriously considering whether presidents are unaccountable god emperors (*offer valid only for Republicans) and actively obstructing the pursuit of justice in the 2020 election coup that we all witnessed with our own eyes.
This court is thoroughly corrupt and doesn’t care if you know it. This seems a good time to re-post my 2023 interview with Meagan Hatcher-Mays, a lawyer and democracy expert based in Washington, D.C. She’s previously served as the director of democracy policy at Indivisible, counsel at Demand Justice, and was an an aide for Eleanor Holmes Norton, the District of Columbia’s non-voting delegate to Congress. You’ve probably seen her on cable news talking law with Chris Hayes, Mehdi Hasan Show, Zerlina Maxwell, and Charles Blow.
She’s also the co-host of the hilarious Text Me Back podcast with her best friend Lindy West (Shrill).
This was one of my favorite discussions, and according to the stats, my podcast interviews receive far more attention here than when I posted them elsewhere. So, I hope you enjoy!
Transcribed excerpts from our chat:
SER: You’ve long advocated for Supreme Court reform, and before most of us even knew about Clarence Thomas’s spa weekends with Harlan Crow, you wrote a piece in May 2019 called “It’s Time For Democrats To Get Serious About Reforming The Court.” So I just want to read this quote here:
“Here’s a nightmare scenario for you. In 2020, Democrats could win back the White House, the Senate, and maintain their majority in the House of Representatives.
They could pass a slate of dream progressive policies like Medicare for All and the Green New Deal. And it won’t matter because the current U.S. Supreme Court, stacked with conservative ideologues, will overturn all of it.”
So, Meagan, where do you keep your crystal ball? And can I borrow it?
MEAGAN HATCHER-MAYS: This is actually like pretty well laid out by the Right. Like they weren’t actually weren’t being very secretive about their plans for what they wanted to do with not just the Supreme Court, but the lower courts as well.
I think you could actually go all the way back to probably Brown v. Board. The Right looked at decisions like that, decisions like Roe v. Wade, any decision that expanded fundamental constitutional rights to marginalized groups, the Right looked at that and thought, “Oh, no, we can’t have that because we want to prevent marginalized people from having expansive constitutional rights.
So they really hunkered down in the ‘80s and invented the Federalist Society. They invented the concept of originalism. That’s not a real thing. They just invented it. It’s the same age as me. It’s not like Thomas Jefferson invented originalism. It’s not anything. And they came up with these ways to capture the courts with ideologues who would restrict constitutional rights back to their belief of who deserved them, which is like white, wealthy men mostly.
So they’ve been at this for 40 or 50 years now. And it’s pretty obvious … even if you’re not really a court watcher after Scalia died and Mitch McConnell said, “I’m keeping this seat open until the next president is elected.” That tells you everything you need to know about what the Right wants to do to the courts.
They do not want to take any chances with the people that they pick. They are explicitly recruiting people, who will and did overturn Roe v. Wade, undermine workers’ rights, gut the Voting Rights Act, get rid of affirmative action. That’s why these people were picked.
And that’s why my crystal ball is really just my eyeballs.
SER: We have a 6-3 conservative court. The three most recent ones are hacks who never would have gotten on the court if Mitch McConnell had not nuked the filibuster. They would never have gotten 60 votes. And we all know that Clarence Thomas, Samuel Alito, and John Roberts are never, ever, ever going to retire while a Democrat is president. So, then we are in this very kind of morbid reality of hoping a human being dies, which is against my own instincts.
There’s no recourse. Generally speaking with a president or a senator or anyone, you go out, you vote, you remove them from office. These people are going to perhaps even outlive me. So how do you tell human beings like, okay, well, maybe in 30 or 40 years, you won’t be a second class citizen, or maybe these people will perish. Well, perhaps not in the next four or five years and Biden might be president, and it's highly unlikely. Because statistically, Democrats aren't going to be [in power forever].
MEAGAN: You’re right, and it’s actually worse than what you said … There’s a study that’s been done that suggests that the soonest Democrats might retake control of this, like liberal nominees would retake control of the Supreme Court is 100 years from now. We’ll be dead and we will have died as second class citizens without our rights ever being restored.
It’s like … Come on. You know we can't just do nothing. [That] is a massive abdication of, I think, like Congress’s role in performing oversight over the court the same way they do every other branch of government and same way they do federal agencies. The court is not some special thing that just gets to do whatever they want. And by the way, this is not just like a petty disagreement about the outcome of a case or two.
And by the way, this is not just like a petty disagreement about the outcome of a case or two. This is not like, oh, well, I’m really mad and I want to add four seats to the Supreme Court because, Neil Gorsuch has a different style of statutory interpretation than I do. Or actually, my favorite color is purple and Brett Kavanaugh’s is blue. So I want to impeach him for that. That’s not what this is about. We’re talking about like probably one of the most significant rollback of our fundamental rights in over 150 years, and it’s all happening at the Supreme Court.
They are doing things at the Supreme Court that Congress isn’t able to do because it’s so unpopular.
Congress is not able to pass a nationwide abortion ban, but the court can repeal Roe v. Wade.
Congress isn’t able to pass a law that says you can discriminate against gays at your business, but the court can do that because they are operating as though no one has any oversight over their behavior.
Again, this is not about like, well, I just happen to have different opinion. I just would tinker a little bit differently on the margins about how you decided that. This is like they’re making stuff up wholesale.
BONUS: How Do We Unrig The Supreme Court With Meagan Hatcher-Mays