Daily Herald opinion: Maybe bad ideas must be considered to protect the strength of our union

  • The U.S. Supreme Court has shown broad willingness to discard legal precedent -- to the point that it may consider freeing state legislatures from the control of their supreme courts in setting election policy.

    The U.S. Supreme Court has shown broad willingness to discard legal precedent -- to the point that it may consider freeing state legislatures from the control of their supreme courts in setting election policy. Associated Press Photo

 
Updated 7/5/2022 7:01 AM
This editorial is the consensus opinon of the Daily Herald Editorial Board

In the midst of adverse Supreme Court rulings and an obstructed legislative agenda, Democrats in Washington are understandably frustrated. Frustration, as we know, can turn to counterproductive haste, and temptation looms heavy for both Houses of Congress right now -- complicated by developments that can stir lovers of democracy from any party to strain to find some constructive balance point between haste and urgency.

At issue are two notions of which we are fundamentally skeptical: expanding the Supreme Court and upending the Senate filibuster.

 

In normal times, the first seems especially suspect and impotent in the long term. It might make Democrats, especially progressive Democrats, feel good to statutorily expand the size of the nation's highest court as a response to a court they feel has tilted too far beyond what they consider fair. But in the sober light of day, such an action holds but little hope of creating long-term stability on the court. What is there, after all, to assure that a court of 12 or 15 or even 20 members won't eventually be dominated by a single ideology, enticing lawmakers of the aggrieved party to later consider tinkering again with the court's size?

Is nine the right number for the size of the court? That's a legitimate point of debate -- but not a great one to be settled by a statute that can be modified or reversed by the whim of whatever party is in power.

Such, too, is the fatal flaw with "suspending" or ending the filibuster, as President Biden and progressives in his party have suggested. Not that the system doesn't need some modification -- the fact that lawmakers no longer have to actually stand and filibuster has greatly distorted its power. But the maneuver does provide some capacity for a minority party to contend against the tyranny of the majority -- a capacity whose loss Democrats could well find themselves mourning as soon as the next election.

So, neither expanding the Supreme Court nor dispensing with the filibuster is an appealing response to court decisions Democrats don't like -- even if either action could in fact be completed before a potential turnover of power in the November midterms.

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But now we also see a Supreme Court bristling with willingness to reverse decades of settled law -- to the point that several members have expressed support for freeing legislatures from oversight by their state supreme courts in setting election and redistricting rules, raising the specter of unchecked political despotism within individual states and a chaotic assortment of election procedures that would further weaken the public's faith in the election process and fracture the bonds of our union.

Under such a threat, we can understand the need, indeed the urgency, of seeking a greater balance of ideologies on the court. The long-term course for modifying the court must be constitutional and built on a more robust and critical examination than a few months of debate can provide. But in the short term, our democracy appears to be imperiled by rogue justices with little or no respect for the stability of long-held legal precedent.

In such circumstances, sometimes even bad ideas offer the prospect of hope or control. Expanding the Supreme Court or eliminating the filibuster both qualify as bad ideas. In the present moment, unfortunately, they are not beyond the realm of consideration.

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