Let’s be honest: we’re already living through the breakdown of the old constitutional order. The Supreme Court isn’t a neutral arbiter checking power, it’s an unaccountable veto point wielded by a reactionary minority. That’s already authoritarianism.
You say we risk losing the war, but we’re already losing it now, precisely because we keep obeying rules the other side abandoned long ago. They’re not afraid of long-term consequences. They play for power, and they’ve spent decades using the courts to entrench a vision the public never voted for.
Jurisdiction stripping isn’t some radical break. It’s in the Constitution. It’s been done before. Refusing to obey lawless rulings isn’t the collapse of the rule of law, it’s a defense of democratic legitimacy when the law becomes a weapon of minority rule.
Without a supermajority in the Senate, it’s one of the only tools we have left. We can’t expand the Court. We can’t pass a constitutional amendment. But we can take specific issues out of their hands.
In doing so, we force a public reckoning. We push the conversation forward: what is the Court’s role? Who governs in a democracy? This isn’t about bypassing the law, it’s about reclaiming it.
We can’t let abstract fears of future abuse paralyze us into permanent surrender. The pendulum only swings if someone pushes it. Right now, the Court is holding it in place against the will of the majority.
I think you and I agree about a lot of things in this conversation. We agree that the "old constitutional order" is breaking down (or at least straining at the seams); we agree that Dems and progressives are currently "losing the war" to the right in a number of ways (and have been, essentially, since at least the time that McConnell successfully stonewalled the Garland nomination, and perhaps longer); we agree that the Dems have been losing in large part because they have been "obeying rules the other side abandoned long ago" in a number of regards.
We very much disagree, though, if you think what I am advocating for is "letting abstract fears of future abuse paralyze us into permanent surrender." I am not advocating permanent surrender. I am advocating the restoration and reform of our our constitutional order to, most importantly, restore the power to Congress that it has voluntarily and fecklessly handed away to the executive. That, more than anything, is what has disrupted our balance of power and led to an increasingly over-powerful presidency. We should not need a "super majority" in the Senate to do anything, because the clear intent of the constitution was that legislation be debated when brought to the floor and passed by majority vote. If Dems can win back control of the Senate and dismantle the counterproductive procedural rules with which Congress has tied its own hands, then they can do all sorts of things with a majority that would help provide needed reform. Among those things they could do are several measures to reign in the power of our reactionary Supreme Court. They can pass legislation expanding the size of the court by majority vote; they can pass by statute more robust and enforceable ethics laws that the Court has said currently do not exist; they can alter the way in which the Court exercises its jurisdiction in a number of ways. (And, if Dems get a majority in the next Senate - which, unfortunately, looks pretty unlikely - they can and should refuse to consider any lame-duck nomination Trump makes to fill a Supreme Court seat should any justice, and in particular Thomas or Alito, who seem the most likely candidates, die or retire.)
I also want to try to better explain why I think what you're specifically arguing for its counterproductive. First, as to "refusing to obey lawless rulings" - the problem is that the general public has very little concept of what is really a "lawless" ruling and what isn't. Politicians from both sides have been claiming for years that rulings they disagree with represent "judicial activism" or "legislating from the bench" or otherwise exceed the authority granted to judges. What we have not had yet - and only under the Trump 2.0 administration have even come close to, at least in modern times - is either Congress or the Presidency saying that they will simply ignore rulings they believe to be "unlawful." I understand your desire to do that in cases where
you think the result is unlawful. But you will never, ever, ever get all Americans to agree which rulings is unlawful - and the vast majority of Americans have such an elementary understanding of law and how courts work that they will be easily manipulable in that regard. It is clear that Republicans are not going to be the party to advocate for the rule of law and obeying rulings they disagree with - at least not in their current state. Dems therefore
have to be that party. Because otherwise, as soon as Dems start saying publicly that rulings of the Supreme Court can and should be ignored - even if we all believe they are well-intentioned and correct in doing so - it will now be open season for anyone to claim that any ruling they don't like is unlawful and should be ignored. That will absolutely, inevitably lead to the breakdown of the rule of law. That is not me advocating "paralysis" due to fear of speculative circumstances. That it simply practical logic. Refusing to anticipate and consider the inevitable long-term consequences of short-term actions is simply naivete.
(I will also note that Dems supporting the rule of law generally has popular support. The Trump administration saying/implying that it maybe did not intend to respect rulings of the Supreme Court with respect to immigration and other cases was
hugely unpopular. Even though Trump's immigration policy itself was more popular. Even many people who support the substance of Trump's policies are not ready to give in to that sort of "the ends justify the means" undermining of the rule of law. If Dems give up their position of respecting the rule of law, it's all over. And by "it" I mean our experiment in Democracy. That experiment may be currently teetering or hanging by a thread or whatever metaphor you want to use - but it isn't over.)
Second, as to jurisdiction stripping: I understand that jurisdiction stripping, with respect to the court's appellate jurisdiction, is something that has been done before. What I think is a bad idea is attempting to carve out broad subject-matter swathes of cases that are now no longer going to be within the court's jurisdiction - and specifically making those subject areas ones that house the major progressive policy goals. For one thing, the practical result of that would presumably be that circuit courts are now the courts of highest appeal on those issues. And there is a wide range of ideological disagreement among them. So what you will potentially create is a situation where federal law on critical issues is widely different depending on which federal circuit you happen to live in. The Fifth Circuit - which is, like, a full standard deviation to the right of the current Supreme Court - will happily overturn any progressive legislation brought before it on whatever spurious legal grounds FedSoc lawyers invent. The Ninth Circuit will be diametrically the opposite. Other circuits will fall at various places in between. It would be chaos, with no court available to resolve the disputes between the circuits. That, in my view, is actually a worse situation than the one we have now, even with this current nightmare of a Supreme Court.
For another thing, such a jurisdiction-stripping bill will inevitably (again, not speculatively, but inevitably) cause disastrous consequences when right-wingers get back into power. Oh, Civil Rights legislation can't be reviewed by the Supreme Court? Well, say hello to the "restoring the civil rights of straight white Americans act." Oh, the Supreme Court no longer has jurisdiction over labor laws? Well, say hello the national right to work act, preempting all state laws to the contrary. And beyond that, if the left wing strips Supreme Court appellate jurisdiction with respect to all of their policy priorities , the next time right-wingers are in power they will simply do the same thing. I can't possibly see how that is, long term, a good thing for Democracy. The whole thing that has gotten us into major trouble recently is disrupting the balance of power between the branches of government. The solution is not to further disrupt that balance by removing checks that each branch has on another.
Ultimately, it just seems like everything you are advocating for is built on the premise that the things leftists will do, through whatever means, will be so overwhelmingly popular that the right wing will either never come back into power again or, when it does, will be so cowed by the popularity of what leftists have done that it doesn't dare seek to reverse them under the terms of this new constitutional order. Again, I find that to be incredibly naive. I understand that the Supreme Court, broadly, is very unpopular (just like Congress). But I do not think that unpopularity is because it is universally seen as too conservative. Instead, liberals hate the court for doing conservative things, conservatives hate it for doing liberal things, etc. People across the ideological spectrum may all agree, at some level, that the way the court works and its lack of transparency and consistency are negative things. But that does not mean that they will universally cheer significant reform to the court by one side of the ideological spectrum. Conservatives who strongly disagree with the left's priorities on things like labor, civil rights, education, environment, etc are not going to suddenly agree that stripping the Court of oversight over those things is good for everyone.
