Progressive politicians must commit to expanding the court, or voters should pledge their support to other candidates who will.
Since January, I have interviewed numerous federal workers whose jobs have been hanging in the balance following the Department of Government Efficiency’s early purges and the follow-up reductions-in-force plans ordered by individual agencies and departments.
Watching these mass firings unfold, it’s been clear the commissars and tech bros in charge of dismantling government functions are not working to some master plan of efficiency. Rather, they have been working to arbitrary quotas set by the Trump team that dictate what random percentages of the workforce should be let go, and hewing to ideological mandates about shrinking government no matter what the collateral damage may be. They have fired people in deliberately cruel and traumatizing ways, not for doing bad work but for work that reveals inconvenient truths—that, say, climate change is real and has tangible consequences; that discrimination exists in the education system and shrinks the opportunities available to children in low-income communities and to students of color; that infectious diseases spread particularly quickly when public health systems are dilapidated and inequality is rampant.
In executing these layoffs, Trump’s administration has left America critically exposed, with too few federal first responders, too few meteorologists, too few air traffic controllers, too few infectious disease detectors, too few workplace safety monitors, and too few employees to monitor violations of schoolchildren’s civil rights. The deadly flooding in Texas offered a harbinger of what happens when there are not enough FEMA staffers to manage a deluge of calls and requests for assistance. The Houston Chronicle compared FEMA’s response to the Texas flooding to the failures following Hurricane Katrina. And, given the scale of cuts, this is likely only the first act in a long, and ugly, passion play.
Time after time, lower courts have ruled against the firings, finding them to be capricious and a violation of long-established practices that give Congress the power to make and unmake agencies and departments, as well as to delegate functions and allocate funding to those agencies and departments. For months now, in consequence, workers whom the Trump administration has tried to fire have continued to receive their paychecks. Put simply, judges have come to the commonsense conclusion that agencies with virtually no workers would be unable to perform their congressionally mandated roles.
Now the majority on the Supreme Court has upended those commonsense rulings and allowed mass firings to proceed apace. The first blow came just over a week ago, when the court issued an unsigned ruling allowing wholesale firings across the federal government to resume. The second came earlier this week, when the court specifically permitted the gutting of the Department of Education, eviscerating a half-century-old, congressionally created department, and doing so with absolutely no input from Congress.
The “conservative” justices arrived at these startling decisions not on the merits of the government’s legal arguments but by buying into the administration’s preposterous position that they should allow the firings to proceed “temporarily” while the legal proceedings around the reduction-in-force orders are playing out. This is, of course, an absurdity.
In the case of the Education Department, what the ruling means is that decades of expertise on enforcing civil rights law, on distributing grants and loans to low-income school districts and to students, and on making schools more accessible to children with a range of learning disabilities can be cast aside “temporarily” while the lawsuits continue. What is left unsaid is that if the government ultimately loses in those lawsuits, the damage will have already been done; the work of those fired workers will have been unraveled, and decades of efforts to make education fairer and more accessible will have been destroyed.
It’s hard to imagine thousands of highly skilled fired workers simply hanging around for months on the off chance that the courts will eventually deliver a ruling in their favor. They will find other jobs and take their skills and knowledge elsewhere. Whatever the courts decide, the DOE will thus have been left eviscerated. And so, Trump wins even if he technically loses.
The “conservative” justices have, in the face of numerous lower-court rulings to the contrary, given the felon president yet another win-win scenario.
I put quotation marks around “conservative” quite deliberately, for the rationale they are using in their recent rulings is in fact revolutionary, upending a quarter-millennium-old constitutional balance of power between Congress and the executive and creating a system that, in practice if not in theory, allows for rule by fiat. What is emerging in the United States at a federal level seems to resemble absolute monarchy far more than it does representative democracy.
In the 17th century, the English playwright George Chapman famously wrote that “the law is an ass.” Today’s Supreme Court is exemplifying why that phrase still holds resonance.
All of this was entirely predictable given Trump’s reshaping of the Supreme Court from 2017 to 2021—and given then–Senate majority leader Mitch McConnell’s refusal to hold hearings for Obama nominee Merrick Garland, followed by his determination to hold confirmation hearings days before the 2020 election for Trump nominee Amy Coney Barrett to replace late Justice Ruth Bader Ginsburg.
Joe Biden might have helped to blunt the impact of this “conservative” supermajority had he put his muscle behind expanding the Supreme Court and had the Democratic Party’s congressional leaders made expanding that court a top priority. But they didn’t. Biden was too infatuated by a supposedly bipartisan institutionalism that had, in reality, long vanished, and congressional leaders were too muddled in their messaging on the issue to corral strong public support for such a change or to pressure holdouts within their own caucus to fall in line behind reform.
Today we are living through the appalling consequences of that dithering. The six “conservative” Supreme Court justices are stringing together a record that, in its sheer odiousness, ranks right up there with that of the pre–Civil War court. They have greenlighted the dismantling of core government functions, given the thumbs up to enforced disappearances of immigrants to “third countries” such as South Sudan, made it easier for the Trump administration to continue its unconstitutional assault on birthright citizenship, and authorized discrimination against transgender Americans. Each week, they add to the litany of foulness.
Over the coming election cycles, there’s at least a chance that, given voter hostility to Trump’s broad agenda, the Democrats will, even in the fact of rampant GOP gerrymandering and federal election interference at the state level, rack up significant wins. They might well regain control of at least one chamber of Congress in 2026, and they should be in a strong position to win the presidency in 2028. But, without a rapid overhaul of the Supreme Court, the impact of such victories will be muted.
This Supreme Court, despite Chief Justice Roberts’s occasional protestations about its independence, is serving as a midwife to Trump’s peculiar, reality-TV version of American fascism. If and when political opponents of that fascism manage to regain power, they will face those same six troglodyte justices (or their even more Trumpie replacements—see the speculation that Trump is grooming Emil Bove, his chief legal henchman, for the Supreme Court) arrayed against their every progressive impulse.
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This should be a simple litmus test issue: If Democratic political candidates won’t publicly commit to rapidly expanding the Supreme Court, then progressive voters ought instead to pledge their support during the primaries to those who will.
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