Debt ceiling crisis is political theater

 

Gordon L. Weil

America, hope you enjoyed the political theater.

Because that’s what all the anguish over the debt ceiling amounted to.  In the real world, relatively little has happened.

Congress had voted for public spending, but the outlays could only be covered by new borrowing, because tax revenues wouldn’t be sufficient.  That would boost the national debt.  But there is also a ceiling on public debt that Congress mostly ignored.

Then, last November, the Republicans won a slim majority in the House of Representatives.  The GOP right-wing hoped to use the debt ceiling as a way of reversing spending they had opposed and even some they had supported.

The GOP would take control of the House in January.  Before then, President Biden and the lame-duck Democrats could have put through a bill increasing the ceiling.  He might have been forced to make some concessions to conservative Democrats, but that would have been easier than dealing later with the Republican House majority.  He did not take the opportunity.

Or he could have ignored the debt ceiling on the grounds that it is banned by the Fourteenth Amendment to the Constitution.  But Biden was worried that the matter would end up being resolved by the courts.  Then, the House GOP passed their own budget-slashing version of a debt limit bill, and forced him to negotiate.

Failure to raise the debt limit supposedly meant that the federal government would not have enough money from taxes for its debt payments.  It would default, the pundits warned.  Interest rates would rise, their effect rippling through the economy.  Government spending cutbacks would kill growth.  Jobs would be lost and the stock market would fall sharply.

Possibly the greatest harm would be to the role of the American dollar, the reserve currency widely used to finance world trade and investment.  As other counties lost confidence in it, U.S. influence would decline.

The Treasury Department said federal income would no longer cover all the bills on June 5.    Panic, hyped by the media, gradually appeared.  Default loomed.

Only it didn’t.  The Treasury receives enough tax money to pay debt service, though some government spending would have to be cut or even halted.  Social Security and Medicare have sufficient reserves to cover many more months of outlays.

Biden and House Speaker Kevin McCarthy engaged in desperate negotiations to avoid default.  Each tried to attach blame for a possible default on the other.  That was the essence of the negotiations.  If there were a deal, each would need to declare victory.

They reached a deal to send to Congress, so both must have won.  McCarthy got mostly symbolic caps and reductions from slightly lowering planned spending over the next two years, and Biden saved his major initiatives.  Sensibly, unspent Covid relief dollars were recovered.  The debt ceiling was lifted until after the 2024 elections. 

Here’s an example of why not much happened.  Biden and the Democratic Congress had passed $80 billion for the IRS over an eight-year period to collect unpaid taxes from the wealthiest taxpayers.  The GOP falsely claimed that taxes would be raised on average people. 

The two-year debt ceiling deal appears to cut this amount by $10 billion.  The IRS has its plans in place.  If necessary, it can shift money forward from future years and keep pursuing improved collection limited to people with incomes over $400,000.  Nothing in the deal prevents Congress from restoring the full spending three or more years from now.

As for the dollar’s world role, it’s already waning and with it American prestige.  “America First” policies, previous debt ceiling crises and the rise of China’s yuan have been reducing U.S. economic power.

Strong House GOP conservatives and many progressive Democrats dislike the deal.  The conservatives think McCarthy got too little and oppose it, knowing that passage does not need their votes. The progressives think Biden should have made no concessions.  Few want responsibility for a default.  In the end, both sides will enjoy the illusion of a political victory.

Can this situation be avoided in the future?  The House once had a rule that whenever it passed a bill requiring debt to pay the cost, the debt ceiling would be automatically increased.  The losers would not get a second bite of the apple through a later battle over the debt ceiling.  That rule should be revived.

Congress should never spend money without deciding where it will come from. That principle is rarely observed, because it’s a lot easier simply to spend, while shielding voters from the cost.

Not all future spending has to come from driving the country deeper into debt, making new debt ceiling clashes and default a real possibility.  When Congress increases spending, from adding military hardware to boosting renewable energy, it should exercise greater leadership and cover the costs by combining debt increases with tax increases. 

Otherwise, it’s political theater.

‘No Labels’ party could be conservative plot

Gordon L. Weil

Voters seem to be worried about the leading presidential candidates.

They worry about how far Donald Trump would go in departing from political norms. They worry simply about how far Joe Biden would go.

Because both the former president and his successor appear highly likely to be the major party nominees, the election might not do much to close the nearly even political divide.

Along comes the “No Labels” party, its name designed to show that it is not affiliated with either the Democrats or the Republicans.  It may propose an “independent” candidate, who could appeal to “the center” that is ignored by the two major parties.

No Labels should be a nonstarter.  It is both misleading and misguided.

It relies on polling to show both the lack of enthusiasm for Biden and Trump and the presence of a large number of moderates who might prefer a middle-of-the-road candidate.  To build a third party relying on polls may be a mistake.  Many people refuse to participate, and it’s possible that those who reply do not provide complete or wholly honest answers.

The word “moderate” itself may not mean neutral between the parties as much as “pragmatic” in wanting government to work, through compromise if necessary.  But what would be an acceptable compromise?

Maine Democratic Rep. Jared Golden tried.  He proposed a compromise to the debt ceiling deadlock.  It was hailed in the Washington Post.  It was completely ignored even by so-called moderates in Congress.  The partisan war continued.

The No Labels group takes credit for helping create the bi-partisan House “problem solvers” caucus, supposedly bringing together moderates from both parties. But, does it work?  It has been silent on the debt ceiling, except for Golden, a member.

Third party presidential candidates, no matter how well intentioned, may serve as “spoilers,” potentially depriving a major party of enough votes to tip the election to the other side.  It’s impossible to know how the third-party backers might otherwise have voted, so spoiler status is a possibility not a certainty.

Yet it may have happened when Bill Clinton defeated George H.W. Bush in 1992. Independent Ross Perot could have taken GOP votes away from Bush.  Maybe Ralph Nader caused Al Gore’s loss to the younger Bush in 2000.

The presumed answer is that No Labels will put together a president-vice president ticket with a representative of each party.  That would be meant to deal with the spoiler issue.  But the presidential nominee would be the only candidate that mattered.

Who is backing No Labels?  Knowing that would tell us a lot about the kinds of “moderate” policies it would support.  For example, how would it balance Medicaid spending with tax cuts? People with enough money to fund No Labels are likely to have strong opinions on such a choice.

The organization is using a tax law that allows it to keep its donors secret until it becomes a political party.  At the same time, it is trying to qualify as a party.  Maine’s Secretary of State questioned if it was trying to mislead people.  Voters are asked to give it a political blank check.

Here’s a way to test its politically neutral intentions, taking it at its word that it backs moderates.

It should support a moderate challenger in the presidential primaries in each party.  The appeal of both Biden and Trump would be tested.  If both of its preferred candidates won, its work would be done.  If only one of them was victorious, No Labels should throw all of its support to that candidate.  If both lost, it would have been proved wrong.

If No Labels participated in this way, it could still keep its financial backers secret.  But that secret would discredit a group trying to promote good government. 

To counter the sizeable, hard-core support for Trump, No Labels looks like a crypto plot by traditional GOP business backers to produce a conservative ticket without Trump. The first step would be to nominate a traditional GOP conservative or a right-leaning Democrat. 

The second step would be to peel away Democrats who think Biden has caved in to the progressives.  If No Labels ran a renegade Democrat, it could re-elect Trump.

The weakness of this ploy is the reluctance among all but a few Republicans to take on Trump. They still worry about the ability of his troops to unseat them.  Just look at the silent Republican “problem solvers.”

At the same time, they ignore the new-found unity of the Democrats.  Across the spectrum, they like Biden, even if some grumble.  Almost all accept him as their leader and understand they must remain unified to have a realistic chance of governing.

In the end, the presidential election could well be all about Trump, and No Labels can do little about that. 

Trump remains faithful to the 'Big Lie' strategy

Gordon L. Weil

Because Adolf Hitler operated so far below civilized bounds, it may seem unfair to say anybody else is like him. But some people continue to use his strategies.

In Germany, when Hitler came to power after his Nazi Party won a minority election victory in 1933, some believed he would fade at the next elections.  They did not imagine that he would acquire dictatorial power to ensure there would be no more elections, but he did.

Hitler is considered as the inventor of the Big Lie. It amounts to stating an untruth so enormous that people accept it because they think nobody would assert anything so completely unbelievable unless it were true.  Strange as that seems, it works.

Former President Donald Trump uses the Big Lie. Most of his public speaking consists of a flow of outright falsehoods with a sprinkling of half-truths.

The American political system, with a right of free speech that is the standard of the world, willingly tolerates anybody saying just about anything.  That’s both amazing and good. But it invites abuse and sometimes that abuse might threaten the very system that allows it.

While the situation is far less dire in this country than it was in Nazi Germany, the U.S. faces a political leader who willingly exploits the rights from which he benefits to undermine and potentially destroy them.  Because many people believe that the system is stronger than he is and can protect itself from extreme threats, they accept his extravagant abuse of it.

The time has come to accept that such an act of faith is no longer justified.  It is time to confront this threat, not by adopting the same tactics, but by fighting the abuse.  It’s time to stop treating Trump as either a truth-teller who must be cheered or as a destroyer who must be bitterly tolerated.  He deserves to be treated as a danger to the U.S.

Some Trump supporters agree with his distrust of government, his claims about widespread election fraud in 2020 and his warnings about the impending doom facing the country if the Democrats control the government.   

His opponents deplore his increasing the federal debt by a tax cut for the wealthy, his attempt to bribe a foreign leader, his false election claims and provoking the Capitol insurrection, and his cruel policy of splitting immigrant families.

Policy conflicts are a normal part of democracy.  Out of these differences may come sound policy.  But using the system that brought you to power to undermine it, even to the point of persistently promoting dangerous falsehoods, is divisive and destructive. Yet that’s what he does, apparently believing that is what enough people want to give him an election win.

Recently, Trump appeared on a televised town hall meeting with New Hampshire voters, produced by CNN.  The cable channel allowed an audience composed almost entirely of his supporters.  He consistently denied or distorted the truth throughout it.

CNN has been sharply criticized for providing Trump a platform for continuing to make false claims about the 2020 election and other events.  The channel defends itself by saying that as a responsible news organization it should provide a forum for a former president who is again seeking the office. It has no legal requirement to do so.

Media leaders argue that the press should report independently and as objectively as possible, leaving it to the people to reach their own conclusions. They are right in emphasizing the value of a news organization in a free society; it should provide access to all political views.

But there comes a time to recognize that by providing a platform to a person who seriously threatens that free society, a media outlet can be dangerously naïve. The Big Lie is not entitled to big coverage.

The Washington Post hosts the best journalistic fact checker, and it refuted Trump’s “fire hose” of false claims on the CNN show.  But it is impossible to keep up with his flow of falsehoods while he is speaking.  When the moderator tried, he talked over her and assigned to her his favorite anti-woman label, calling her “nasty.”

The media should stop treating Trump as if he is entitled to a level playing field and must continually demonstrate its innocence of his charges that it broadcasts “fake news.”  He has forfeited such consideration, and for the media, it verges on being suicidal.

In the same vein, the Democrats, while avoiding his destructive tactics, must be willing to confront him and to counter him as vigorously as he attacks them.  Simply believing you are better at governing and that moderates will someday recognize your merit is not enough.

The media and the Dems appear to worry about offending Trump’s supporters.  If they don’t oppose the Big Lie, they aid its promoter. 

Congress should order Supreme Court to adopt ethics code

 

Gordon L. Weil

As a newspaper correspondent, I was once offered a free trip to write an article about an event at a distant location.  The sponsors would pay for my travel and lodging. While I was confident I’d write an objective piece, it’s likely they expected a favorable report.

I asked my editor if I could accept the offer and produce an article for the paper.  He promptly told me to turn it down, because I could not report on an event for which the sponsor had paid my expenses.  I declined the invitation. 

I could have refrained from asking for approval and kept the editor in the dark.  I could have given him the impression that I had paid for my own travel expenses, perhaps while on vacation.  The paper could have allowed me to go.  In no case would the readers have known.  The reason none of that happened was a matter of ethics.

The paper observes journalistic ethics and expected the same of me.  It is not a government agency and its policies are not governed by law.  But the editors want to preserve public confidence in its fairness and independence.  They know that the newspaper has to keep the public’s trust and avoid endangering it in any way.

We are faced today with the same kind of problem with the U.S. Supreme Court. An unelected government body, it makes decisions that can affect everybody in the country.  Yet it lacks any known ethical code.  If it has an undisclosed code, enforcement or lack of it is left to the Court itself.

While Congress, the executive branch and all federal courts must meet ethical standards, the Supreme Court has no such requirement.  In light of recent disclosures and a long-running effort by Sen. Sheldon Whitehouse (D-RI), Congress has begun to question whether there should be publicly announced Supreme Court standards.

The discussion has almost instantly become partisan, because issues have arisen concerning conservative justices, including Justice Clarence Thomas, who received large, undisclosed gifts, Chief Justice John Roberts and possibly others.  Some Republican senators are reluctant to require a Court code, while Democrats seek some reform.

The situation reflects partisanship.  Republican legislators may not want to question the ethics of justices whose decisions they like.  Democrats may like challenging hostile justices.  This focus is revealed in the low headlight beams of short-term party politics without turning on the high beams to see what would be good for the American political system. 

Sen. Richard Durbin (D-IL), the Judiciary Committee chair, invited Roberts to discuss the Court’s substituting a mere declaration for a real ethics code.  Roberts declined, based on concern about protecting judicial independence.  He seemed to assert that it could not be held accountable by Congress.  Checks and balances appear not to apply to the Court.

His attitude is consistent with the increasingly dominant role of the Court in the federal government.  He resists the kind of congressional role contemplated by the Constitution and takes extreme advantage of the respectful reluctance of the Senate to avoid meddling in Court decisions.

Senators Angus King (I-ME), who aligns with the Democrats, and Lisa Murkowski (R-Alaska) jointly proposed legislation that would require the Court to adopt a public ethics code within a year.  Congress would not set the code for the Court.

The Court would be required to appoint an independent official to investigate complaints and to issue an annual report.  The Court would also be authorized to investigate ethical questions, a power that it probably believes it already has.

The investigator could become a magnet for complaints and an annual report might allow ethics violations to linger too long.  And what would happen with the report once issued?

This good bipartisan effort could easily be improved without affecting the Court’s judicial powers.  The Chief Justice could appoint a panel of federal judges to review complaints and make public its findings only if it uncovered possible violations.  A similar confidential court to deal with national security issues already exists. Its members are appointed for fixed terms.

If this panel found an ethics violation, it would report to Congress. The House could then decide whether to impeach the justice.  Federal judges (including one early Supreme Court justice) have been impeached and some have resigned before impeachment.  Finally, the Senate may convict or acquit.

Checks and balances work because judges, members of Congress or presidents may be charged by the House and convicted by the Senate only after a trial.  But the Supreme Court has chosen to be its own judge and has never in the 234 years of its existence disclosed a major violation of any confidential code of judicial ethics.

Roberts should not overly insulate the Court, one of the three equal branches of government, and let checks and balances work. 

 

Is U.S. becoming more Republican? Probably not

 

Gordon L. Weil

People from the blue states are flooding into the red states. 

That may be the impression left by alarmist reports of people leaving Democratic states in the North for Republican states in the South and West.

If true, that could mean growth in the population supporting Trump Republicanism and the decline of liberal Democratic states.  To make sure that the blue state migrants don’t infect red states, the ever-zany GOP Rep. Marjorie Taylor Greene suggests they should not be allowed to vote in their new home states for the first five years. 

While the facts show that Republican-controlled states are growing faster than the traditionally Democratic states, don’t jump to the conclusion that those gains will benefit the GOP. In fact, the reverse might be true.

Why are people on the move?  Nobody knows for sure, but there is little evidence that politics are driving the migration. The reasons may include warmer weather and lower taxes.  Weather is undoubtedly an attraction. Taxes may be a factor but probably not the main reason for most people deciding to move.

Both low corporate taxes and pro-business labor laws attract business investment and create jobs.  People move to new offices and factories. 

But part of the GOP mantra these days is that the people moving south are fleeing the high crime rate in northern cities.  This claim implies that Republicans do a better job fighting crime than the Democrats.

The major problem with this assertion is that it is false.  The crime rate in northern states under Democratic control is lower than the rate in the destination states.  “The Northeast is the region with the lowest crime rates [for violent and property crimes],” according to USAFacts.  These are all Democratic states.  States in the South and West rank the highest.

Republicans make much of Democratic California’s population loss, supposedly due in part to the attraction of conservative Republican Texas.  Florida Gov. Ron DeSantis of Florida offers his Republican state with its millions of migrants as the model for America.

The GOP is closely linked to small town America.  In Maine, it does better in rural countries than in urban areas.  Predominantly rural states like Maine are rare.  The Census shows that people are leaving rural areas for the cities.   

Northern movers to red states do not settle in the rural and most conservative parts of those states.  The fact that the cities where people move are Democratic hardly discourages people from moving.  They head for the cities, and influence the voting behavior there.

There’s an old political saying that when people move from the North to the South, both areas become more liberal.  It’s possible that migrants from the North bring their moderate political views with them and they aren’t washed out in five years.

Look at Atlanta, Georgia.  That state has been reliably Republican since Democrat Jimmy Carter, its native son, was president.  But, in 2020, it voted for Democrat Joe Biden for president and later gave both of its U.S. Senate seats to Democrats.  The main reason was the influx of new voters into Atlanta, not a sudden change of heart in traditional, rural GOP areas.

The same appears to be true in Phoenix, Arizona.  The state had settled into being reliably Republican but now has a Democratic governor and two U.S. senators who align with the Democrats.  As in Georgia, Biden’s narrow win  over Trump led to loud but unsubstantiated claims of vote rigging in the Democrat’s favor. 

Migrants could be helping turn red states to blue.  Austin, Texas, Raleigh, North Carolina, and Orlando, Florida, are the fastest growing big American cities, and all have Democratic mayors. So does huge Houston, Texas.

This trend matters, because these states could swing presidential elections.  While Biden carried counties with 67 million more people than Trump in 2020, they were concentrated in fewer states.  California and New York will still vote Democratic even after an exodus but the people who move elsewhere could help tip the presidential electoral vote away from the GOP.

The political logjam that has given the GOP the power to veto change is likely to break only if the Democrats win more elections even by narrow margins rather than winning fewer elections by larger margins.

The Republicans focus on making it more difficult for Democratic voters to cast their ballots.  Apparently, they hope to preserve minority rule.  But demographics may be working against them. The migrants who bring their politics with them might one day simply outnumber the old-line GOP. It may now be beginning in Georgia and Arizona, and it might soon happen in Texas.

The population shift is neither party’s clever political plan.  Instead, the people are literally voting with their feet.  Watch where they go and what they do when they get there.

 

Here's why support for Supreme Court falls

 

Gordon L. Weil

In dissenting from the Supreme Court’s procedural order suspending lower court rulings on an anti-abortion drug, Justice Samuel Alito issued an historic tirade.

Alito blasted the Biden Administration and fellow justices and revealed both the ultimate outcome of the case and extreme judicial  partisanship.

The case began when a U.S. District Court judge in Texas overturned the Food and Drug Administration’s long-standing  approval of mifepristone, an abortion drug.  Then, a U.S. Circuit Court partially overruled the lower court judge, but cut the FDA authorized period for its use until it finally decides  the case. 

The Supreme Court temporarily suspended both rulings, allowing continued use of the drug as approved by the FDA.  Alito wanted to confirm the Circuit Court position.  Justice Clarence Thomas opposed the Supreme Court order without explaining his reasons.

Alito also claimed that limiting the drug’s use pending a final decision would not cause anybody harm.  His judgment seemingly ignored the sudden inability of some women to use a legal medication over what might be a period of many months.  It is difficult to believe he did not understand that.

In his dissent, Alito forecast that the Supreme Court would later support the FDA.  He interpreted the suspension of the lower court rulings as a message that the majority would reject any lower court attempt to overrule the FDA’s experts when the case came back to the Supreme Court.  Having participated in the Court’s private discussions, he was most likely right. 

Alito vented his frustration.  He attacked the Biden Administration, saying “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order....”  When had the president disobeyed courts orders?  What made such doubts “legitimate” when they have never been raised in court?  Did he pick it up “doubts” from media speculation?

Supreme Court justices are expected to display a “judicial temperament.”  That means they should appear calm and thoughtful, giving people confidence in their hugely important decisions.  Alito blew it. 

The angry jurist also charged that the suspension amounts to a major decision being made by a procedural order.  This would be the so-called “shadow docket” that he had previously supported as part of a Court majority.  He attacked two justices who had earlier opposed it but who now used it, he claimed  Having lost, why shouldn’t his two colleagues accept his position?

But the Court was only issuing a procedural order doing nothing more than leave the FDA ruling in place until it finally decided. It changed nothing.  Alito believed the lone district judge’s unscientific decision was worthy of being observed, at least in part, until the case was finally resolved. That would have been the real “shadow docket.”

He also revealed his partisan bias.  Earlier, in opposing liberal lower court decisions, he had forcefully urged judicial respect for FDA expertise.  He had scorned a single District Court judge for issuing a nationwide order overruling the agency.  Now, when it suited him to second guess the FDA, he reversed course and supported the conservative District Court’s national ruling.

Alito’s dissent highlighted several reasons why public confidence in the federal courts has reached a new low point. 

The Court has allowed single District Court judges, like the conservative jurist sitting alone in Amarillo, Texas, who had made the mifepristone decision, to issue orders covering the entire country.  This power is not expressly authorized by law and is relatively new.  And the anti-abortion plaintiffs were able to cherry pick his court and be sure of getting a favorable decision.

Congress does not screen District Court nominees carefully enough and apparently  relies on trusting that bad or political judges will be overruled by higher courts.  Sen. Susan Collins was the only Republican senator to vote against the questionable Texas judge, who will hold office for life unless removed by Congress.

The Chief Justice has failed to exercise appropriate leadership.  Roberts was surely aware of Alito’s unusual attack on the executive branch before it was published.  He neither induced the justice to drop it nor expressed concern about it. 

Roberts seemed to ignore Thomas having received undisclosed annual gifts from a wealthy and influential conservative. The Chief Justice refused to testify at a Senate committee looking at the Court’s ethics following the Thomas disclosures.  Previously, Roberts had allowed only an in-house investigation by inexperienced staff of the leak of Alito’s ruling overturning Roe v. Wade.

Thomas and Alito are right-wing radicals.  Alito regularly flaunts his partisanship.  Thomas masks his bias in a dubious philosophy.  Roberts asserts a degree of judicial independence that ignores the checks and balances that supposedly are central to the government.

If presidents and senators insist on federal judges as political partisans with little ethical accountability rather than as independent and responsible jurists, the Supreme Court will continue to fall in public esteem.

Supreme Court ignores ‘checks and balances’; Congress should rein it in

Gordon L. Weil

The Supreme Court rules the federal government.

When it comes to judges, the checks and balances that are supposed to restrain each of the three branches of the government don’t work.   The Supreme Court composed of nine, unelected justices holding their positions for life have assumed virtually unlimited power.

When they seek Senate confirmation, judicial nominees declare they have no personal agenda but pledge to simply apply the law.  They give the impression that the law is clear and all they must do is measure each case against its standards.  They will set aside their personal leanings for the cold analysis they must make.

Although everybody knows their political philosophy and that they hold views consistent with those of the president who appointed them, they refuse to answer questions about how they see issues on the grounds that revealing their beliefs might undermine their proclaimed objectivity if they get a case to decide. That lets them get away with what everybody knows is pure fiction.

Just ask Sen. Susan Collins who wanted to learn if nominee Brett Kavanaugh accepted the Court’s precedent when it decided abortion was a constitutional right.  Of course, he wouldn’t simply tell her, so she was left to try to decode his veiled message.  She concluded he respected the precedent.  It turned out he didn’t.

Shouldn’t Congress cut out the sham and insist on real answers as a condition of confirmation?

How about Chief Justice John Roberts when he ruled for the Court that African-Americans no longer needed federal assurance of their voting rights and that states could be counted on to treat them fairly. True, he recognized that the section of the Voting Rights Act he was nullifying was a major reason they had gained voting access.  But enough was enough.

Within minutes of that decision, four states that had been under federal supervision began making it more difficult for Blacks to vote.  And that process has continued ever since. His Court majority was composed of Republican appointees; the states limiting access for African-Americans are under Republican control.

The arrogance inherent in an unchecked judiciary goes on. A lone district court judge in Amarillo, Texas decided that the Food and Drug Administration erred 22 years ago in approving an abortion drug.  He substituted his non-expert judgment for the work of many scientists over many years.  Using a process allowed by the highest court, he applied his ruling to the entire country.  It was appealed.

What’s the reasonable length of a congressional recess?  It might seem that Congress could decide that.  Instead, the Court has ruled it must be at least ten days to qualify as the recess period mentioned in the Constitution.

These decisions are obviously not simply a matter of determining what the law is, despite what the nominees say they will do.  This is legislation.

The justices rather than the Constitution have become “the supreme law of the land.”  They act to make sure that the popularly elected branches, Congress and the president, don’t get carried away exercising the people’s will.

The Framers of the Constitution may have been creating an innovative new democracy, but they didn’t fully trust average people.  The Court, ignoring over 230 years of change, would keep it that way.  But the elected branches and their voters have evolved, and the Court should concede the development of democracy and back off of its paternalism.

The justices need to be accountable.  If the chair of the Federal Reserve can be required to testify before Congress about the Fed’s actions and plans, the Chief Justice should have to explain to elected officials the decisions made by the Court.  The heads of executive departments testify and even the president shows up once a year.

There’s also the matter of personal accountability.  Every member of Congress faces ethics review and financial reporting.  They and the presidents face voters and the media.  Representatives and senators are censured and expelled.  Justices do none of that.

Supreme Court justices make financial reports, but Justice Clarence Thomas has failed repeatedly to do that.  No one can make him report accurately or completely. One justice resigned for taking gifts far less significant than those Thomas accepted. 

The justices have made themselves into untouchable demigods, and Congress has meekly agreed.

In 1803, the Court made itself the last word in the federal government.  An independent judiciary is an essential element of the three-part system that can only work if each branch observes the checks and balances.  Right now, the Court controls many checks and operates without balances.

The Constitution gives Congress the power to make “exceptions” to the Supreme Court’s powers and to set “regulations” for it.  It’s time for Congress to ensure that the Court operates within the constitutional system, but does not own it.