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The American Revolution Was a Mistake

In this week’s Elie v. US, our justice correspondent dissects Ken Burns’s American Revolution documentary. Plus: the DNC’s autopsy report.

George Washington, left, with other officers including De Kalb, Von Steuben, Pulaski, Kosciouszko, Lafayette and Muhlenberg.

The editorial board of Jeff Bezos’s Washington Post dedicated an entire editorial over the weekend to criticizing Supreme Court reform and expansion. The piece is titled “The Court Packing Comeback,” which might make you think it will offer a balanced look at the surging popularity of court-expansion proposals, but the URL tells you what the editorial board is really after. It reads: “kamala-harriss-mindless-flirtation-with-court-packing.” The article isn’t really about Harris, beyond the fact that she recently said that there are “no bad ideas” when it comes to court reform. The fact that the editorial board used that offhand comment to go full sexism—Why is Harris’s statement “mindless”? How is she “flirting”?—tells me they’re scared that court reform is gaining in popularity.

Beyond this base and gross sexism, the editorial board marshals, dare I say, mindless tripe to defend the current court set-up. Here’s the basic premise: “No matter how much someone disagrees with recent decisions by the high court, threatening to subordinate judicial independence to the whims of a political party befits a banana republic. Turning the court into a partisan plaything would destroy one of America’s strongest bulwarks against tyranny.”

Let’s do a close read:

“No matter how much someone disagrees” is a phrase intended to minimize the horror of the Supreme Court’s recent decisions. I will stipulate that for your average cis-hetero white Washington Post editorial writer, the court’s decisions are, at worst, disagreeable. But for many of us, these decisions are matters of life and death. They certainly are for the trans people the Supreme Court is trying to erase. And for the women who live in states where their lives cease to matter the second they get pregnant. And while political representation is not necessarily a life-or-death issue, the demolition of the Voting Rights Act and the right of Black people to participate equally in the process of democratic self-government cannot be dismissed as a mere matter of disagreement.

“Threatening to subordinate judicial independence to the whims of a political party befits a banana republic.” First of all, the current court is subject to the whims of a political party, the Republican Party. The Post’s editorial writers just happen to like it that way. And second, most functional democracies have high courts that are far less powerful than ours. Having nine unelected judges-for-life determine which laws we’re allowed to have is antidemocratic. Actual republics, banana or otherwise, do not cede the functions of democracy to unaccountable people with lifetime appointments.

“Turning the court into a partisan plaything” is what Senator Mitch McConnell did. Court reform is a way to undo that, thanks for asking.

“[O]ne of America’s strongest bulwarks against tyranny.” Is it, though? Is the Supreme Court a “bulwark” against tyranny? From where I sit, I see a litany of examples of American tyranny that were supported by the court. Slavery, segregation, internment of Japanese Americans—all of these atrocities came with the Supreme Court’s stamp of approval. Police violence, gun violence, and ecological destruction all flourish in this country because of what the Supreme Court has allowed. More often than not, the Supreme Court is a bulwark against progress.

After this inauspicious set-up, the editorial goes on to make all the usual arguments against court reform: It decries “tribalism,” agonizes about the possibility of tit-for-tat expansion, and recasts Franklin D. Roosevelt’s attempt at court-packing as a “failure,” even though the mere threat of it helped FDR get his New Deal policies through a hostile Supreme Court.

It all boils down to this: The Washington Post editorial board thinks the current Supreme Court is working just fine and doesn’t want anybody to change it. And they’re not wholly wrong about the first part: The current Supreme Court is working just fine—for The Washington Post and the moneyed interests it now represents.

So let me put it like this: If Jeff Bezos doesn’t want the Supreme Court to be reformed, that should be a sufficient reason for the rest of us to be in favor of........

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