Democracy could commit suicide if elected leaders block voting

Gordon L. Weil

The wrong Maine senator gave the right U.S. Senate speech.

Sen. Angus King, the independent who aligns with the Democrats, recently argued strongly for a bill that would protect voting rights from efforts in many states to discourage voting or discard valid votes.

He showed that state laws supposedly to protect against election tampering were really attempts to suppress voting.  He said that such laws were aimed at fixing election defects that do not exist.

States passing these laws are under Republican control, but the GOP fears losing its dominance.  It wants to prevent Democrats from winning elections by reducing their valid votes.  King saw their recent moves as endangering democracy itself.

As he noted, the American political system is an “experiment.”  It tests whether government under the people, expressing their will through voting, works and can survive in a world where authoritarian rule has seemed to be the natural form of government.

Over the course of history, people have most often been under the control of either a single man or an elite group.  They have lacked the weapons to overthrow authoritarian rule.  In creating the American republic, the founders gave the people the necessary tool – the vote.

Popular control of government has spread around the world.  The U.S. did not invent democracy, but it has played the leading role in its adoption.

Yet democracy contains the seeds of its own potential destruction.  Voters may choose a government that then uses its legitimate power to curtail or eliminate democracy. In effect, the democratic system can commit suicide.

The simple reason why elected officials would endanger or destroy democracy is their desire to cling to power for their own ends.  Their drive to make their control permanent, even if it means undermining democracy, proves the truth of the famous assertion by a long-ago British leader: “All power tends to corrupt; absolute power corrupts absolutely.”

Sometimes they seek power for its own sake.  Or they may use the power of government to enrich an elite group.

That threat is why the system of government under the U.S. Constitution is considered an experiment.  It was endangered when a destructive mob of a few thousand people tried to seize the Capitol on January 6 to reverse the results of an election decided by tens of millions of people.

Attempts to prevent majority rule, the central element of democracy, have gone on as long as the U.S. has existed.  Yet the Constitution has been repeatedly amended to extend democracy by guaranteeing voting to all 18 and older, regardless of race or sex. It provided for popular election of senators and abolished the poll tax used by some states to screen out black voters.

Increasingly, GOP-run states limit access to the polls, and some give Republican legislatures the right to overrule election results.  They echo Trump’s self-serving charge, made with no proof, that massive cheating deprived him of victory in 2020.

Not one Republican senator voted in favor of a bill to prevent states from suppressing voting or overriding the popular vote.

King did not gain as much national recognition as Maine Sen. Margaret Chase Smith received for her “Declaration of Conscience” speech in 1950.  Backed by a few other Republican senators, she condemned Wisconsin GOP Sen. Joseph McCarthy for his phony anti-Communist campaign, smearing hapless victims.

Smith gained fame because she took on a member of her own party.  For her, principle did not conflict with her party.  She said the GOP could defeat the Democrats without resorting to McCarthy’s tactics.

The difference between Smith and King was that he was defending democracy by opposing the other party, the Republicans, while she defended it by taking on her own party. His warning was laudable.  Her declaration was both laudable and courageous.

Sen. Susan Collins, a Republican, says that Smith is her political model.  Having shown the courage to vote against the political impeachment of Bill Clinton and for the impeachment of Donald Trump because of his support of the January 6 insurrection, she might have been expected to speak out against the GOP assault on democracy.

Collins would have been the right senator to express the sentiments in King’s speech.

When a thoughtful senator like Collins falls in line with the anti-democratic actions of her fellow Republicans, it reveals the depth of political division.  The GOP’s policy boils down to crushing the Democrats, even if they represent a popular majority in a state or the country.

Compromise is now impossible, because there is no common ground.  Unless the Democrats can find ways to win elections despite GOP voter suppression, fair elections could be lost.    The real loser would not be either party, but the people.

Correction: Last week, I erroneously labeled the Ninth Amendment to the Constitution as the Eighth. 

Trump's Twitter lawsuit and upcoming Maine vote: constitutional rights claims used to mislead

Gordon L. Weil

Do these two issues have anything in common?

Donald Trump wants a court to order Twitter to lift its ban on his tweeting.

Maine voters will decide next month on Question 3, a constitutional amendment on food independence.

Both issues focus on individual rights, the basis of Americans’ freedoms.  And they both get it wrong.

As president, Trump used Twitter, a private social media site, to announce public policy.  He tried to block his critics from responding to his tweets. A federal court overruled him, saying that he used the site for public purposes so the people must have free access to comment on it.

Now, he flips the argument. After his backing of the January 6 insurrection, Twitter dropped him. He has gone to court claiming the site is violating his free speech rights. He seems sure to lose.

Meanwhile, the advocates of Maine’s Question 3 say they want to add to the state constitution a confirmation of the “natural” right of people to grow their own food.  Such a confirmation is no more necessary that the right to brush your teeth, so it raises the question whether stating the obvious may have a less obvious purpose.

These two cases illustrate three common misconceptions about individual rights. 

First, the Bill of Rights applies only to both the federal government and, in most cases, to the states and deals with the relationship between government and people not to conflicts between people.  Freedom of speech does not apply between Trump and Twitter.

Second, individual rights are not limited to those listed in federal or state constitutions.  All people have natural rights.  The Declaration of Independence states that all people “are endowed by their Creator with certain unalienable Rights.”

In other words, individual rights are part of the human package.  Not all are mentioned in the Bill of Rights, only those clearly protected from the government. The Eighth Amendment says: “The enumeration of rights in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” No need to add “right to food.”

Third, no right is absolute. The rights of each person go only so far as they do not harm the rights of others.  The famous rule is that freedom of speech does not extend to yelling “Fire!” in a crowded theater.

This third misconception is being tested now. The government cannot prevent new religions from forming.  Suppose a person creates one for the purpose of asserting that their religion does not allow the Covid 19 vaccination.  Can that right be limited if a non-vaccinated person can spread the illness to others, who may fall ill or die?

Perhaps the most difficult role of the courts is to determine if a limit on an individual right is acceptable because that condition protects the rights of others.

In its decision on guns, the Supreme Court said that the Second Amendment assured people’s right to keep and use firearms for their own purposes, but government could impose some limits. Yet some gun control opponents maintain the right is absolute and cannot be subject to conditions.

Government may pass laws on rights beyond those listed.  It may impose safety and purity standards on food to prevent disease.  For many issues, private parties need to work out among themselves the degree to which they will respect rights that the Constitution makes the government respect.

And, as Trump is discovering, rights must be the same for everybody. Nobody is more equal than everybody else.

What’s wrong with enshrining the natural right to food in the Maine Constitution?  Won’t it amount to nothing more than possibly reducing the sales of canned peas?

Maybe, but the food independence movement may hide a broader agenda behind this proposal, which it seeks to have adopted worldwide. If it is considered absolute, it could reduce government regulation of food safety.  Cutting food regulation is similar to opposing gun regulation.

“We carry concealed weapons because we don’t trust others with our protection, and believe our security is primarily our responsibility,” writes one advocate. “Why do we not apply the same principles though to one of the most important aspects of our life – food?”

In other words, behind what seems to be harmlessly obvious may be an entering wedge to reduce government efforts to protect society.  It is likely a sign of the growing emphasis on stressing individual freedom above the community interest.

Like much of the discussion of freedom, the cornerstone of the American democratic system, much of what is said about Trump’s right to free speech, fighting the coronavirus or even the right to use a firearm or grow your own food is intentionally misleading.

Protecting personal freedom may require reading the fine print.

Dems, GOP splinter, leaving seven political parties scrambling for power

 

Gordon L. Weil

You can’t tell the players without a scorecard.

That’s not about the World Series. It’s about American politics today.

Conventional wisdom identifies two major political parties and a few minor ones.  But the current struggles over Biden’s Bring Back Better reveal that the Democrats and Republicans have morphed into seven distinct parties, each with its own agenda. 

The rise of parties results from the deep and bitter divisions between the two major parties  and their nearly equal split.  That means a party spinoff may be able to determine the ultimate decisions. Each spinoff  becomes its own party.  Here’s the political scorecard.

The Biden Administration and Trump in Exile are the two presidential parties.  Biden wants to stay in power and reverse Trumpism.  Trump seeks a comeback to restore his policies and reverse Biden’s big government efforts before they take root.

As president, Trump rejected the domestic and foreign policies that had evolved, often with the support of members of both parties, since World War II.  Trumpism is based on a radical reduction in government involvement in the economy and environment plus “America First” in foreign policy. 

Trump showed little interest in protecting minorities and upholding the American political tradition.  While he could exercise strong leadership, it was chaotic and destructive. His election appeal yielded him control of the Republican Party.  Trump’s fans: 30 states, mostly small  plus Texas and Florida.

Biden has chosen the exact opposite approach.  Less forceful than Trump but equally determined and better informed, he has proposed major federal spending on programs to quickly produce tangible benefits.

His obvious goal is to influence the 2022 congressional elections, strengthening the Democrats’ ability to block a Trump revival. Biden’s fans:  20 large coastal states with a popular majority.

Despite the growth of presidential power, Biden and Trump each need backing from enough members of Congress to promote and protect their policies.  Biden’s program depends on unified congressional Democrats, which he does not have. Trump’s future depends on a unified GOP, which he does not have.

Biden’s proposals, priced originally at about $6 trillion, provide the setting for the five congressional parties to test their strength.  Two are Republican and three are Democratic. They range from right to left across the political spectrum.

Trump Republicans are on the extreme right.  In both houses of Congress, they are usually the majority of the Republicans.  As the GOP, they want less government and, as Trumpers, they are unquestioningly loyal to their leader, thanks to his surefire vote-getting appeal.

Because the Republicans have signed on with Trump, their leaders in Congress – Sen. Mitch McConnell and Rep. Kevin McCarthy – head this party. Its policy is simply to block Biden, which it often can, so long as the filibuster survives.  Their fans: Trump’s states.

Traditional Republicans come next.  They are politically conservative but not aligned with Trump. They are a small group in the House of Representatives and a sometimes invisible group in the Senate.  They control little, but seek to keep alive the causes of political conservatism and compromise.

This party’s leader is Rep. Liz Cheney, the Wyoming Republican who defies McCarthy’s demands for Trump loyalty.  Cheney boldly resists, while Maine Sen. Susan Collins, an occasional member, desists in the face of Trumpism.  Their fans: so far, only a handful of House districts.

Moderate Democrats come next on the right-left spectrum.  They are led by Sen. Joe Manchin and include Maine Rep. Jared Golden.  They believe they can bring GOP voters aboard in 2022.  If they won’t give some ground, they could fatally undermine Biden’s hopes. Chances are they won’t block a deal. Their fans: GOP leaning states and districts.

Traditional Democrats are headed by House Speaker Nancy Pelosi, who maneuvers to gain help from other Democrats to control the House.  In the Senate, with Vice President Kamela Harris’ tiebreaker and the Moderates, Senate Leader Chuck Schumer has a majority but can’t overcome a GOP filibuster. They back Biden. Their fans: Urban, coastal states.

Democratic Socialists, led by Sen. Bernie Sanders, are on the extreme left.  They support broad reforms and have some Biden support. They can block a House Democratic majority.  Their opponent is really the Moderates.   They want Biden to accept them as essential to their party’s future success. Their fans: Some urban areas.

Despite this scorecard, this is not a game. To avoid complete political paralysis, there must be a compromise. While the GOP may be involved in an historic internal war, the Democrats are likely to reach an agreement among themselves.  Biden will settle for what he can get.

Ultimately, these parties are all about Trump.  The Democratic parties seek ways to achieve a big win over Trump, while the GOP mostly continue to rally around his blue banner.

Debt ceiling crisis is pure politics, undermining U.S. world leadership

Gordon L. Weil

You want to borrow some money.  The bank will make the loan, because you have an excellent credit history and valuable property to back up your ability to repay.

Later, you tell the bank you won’t be making any more loan payments.  The bank says that your credit is so good, you can even borrow some more. But you decide you have too much debt and prefer to stop paying on your existing loans.

The bank is dumbfounded.  It warns that you would destroy your top-flight credit rating and won’t be trusted the next time you seek a loan.  Even if the bank lends you money in the future, it will charge a much higher interest rate, maybe even placing a lien on your property.  

You are torn between ending debt payments until you can slash your personal spending or avoiding destroying, possibly forever, the good credit rating you have built over the years.

Now substitute the U.S. for yourself in this story and you have the great debt ceiling crisis of 2021.

Congressional Republicans want the Democrats to take the responsibility for the national debt having climbed, though that has taken place over decades under both parties. 

They want to stymie President Joe Biden’s economic plans, though he says it would depend less on debt than on tax increases on the wealthiest people.   The Democrats have helped the GOP by wrangling among themselves about how much of the Biden proposals they will support.

So the GOP has blocked an increase in the debt ceiling. They will only agree to a short-term patch, but keep the crisis going.

The debt ceiling is pure politics.

Congress and the president enact spending bills that commit the U.S. to pay for government programs. The Treasury pays the cost using tax money and, if necessary, it borrows the rest.  The repayment of the amounts borrowed plus interest become part of the federal budget.

When passing spending laws, if Congress does not either cut some other spending or raise taxes, it inevitably requires more borrowing.  It may unrealistically assume that the growing economy will send Washington more tax revenues, but it accepts the likelihood of more debt to pay the bill.

Congress also adopts a debt ceiling, meant to impose a limit on total borrowing. When the amount of outstanding debt bumps up against the ceiling, it is increased.  The debt ceiling serves as an easily ignored notice that Congress may be spending too much without necessary taxes.

The Republicans controlled the federal government when Donald Trump was president. In those years, Democrats joined the GOP in raising the debt limit.  The bills had to be paid.

The debt ceiling war is dangerous.  If the ceiling is taken seriously and not increased, two major options loom.  The government would shut down spending on its normal operations, and use tax revenues to make debt payments.  Or it could stop making debt payments and default on its debt.

The shutdown would lead to a blame game.  That could hurt either party or both.  But default is worse.

The U.S. dollar is the world currency. Some currencies are not backed and their value can tumble, but not the dollar. It is used in most international transactions. Countries believe that the U.S. will back the value of the dollar and that its powerful national economy will always protect it. Some countries even use the U.S. dollar as their national currency.

The role of the U.S. as the dominant world power probably results less from its military might than on the dollar, accepted even by America’s adversaries. The world has opted to depend on the American economy and the certainty that the U.S. will back the dollar by paying its debts.

If the U.S. defaults on its debt, it also defaults on its role as the world’s leading power.  That’s a lot to risk in playing partisan politics in Congress.  GOP leader Mitch McConnell has too narrow of view of the game he is playing.  Even his current debt ceiling threats undercut American power.

The 14^th Amendment to the Constitution says: “The validity of the public debt of the United States, authorized by law, ...shall not be questioned.”  President Biden could ignore the debt ceiling and make debt payments as “authorized by law.”  Ultimately, the Supreme Court could either uphold the Constitution or keep out of this obviously political game.

In the future, each spending bill should include the sentence: “The debt ceiling is hereby adjusted to the extent required by this appropriation of funds.”  That would end the dangerous political games.

At the end of this year’s war, the dollar, now damaged, is likely to survive as the standard, at least for a while longer. 

New AUKUS pact again pits Europe against the ‘Anglo Saxons’

Gordon L. Weil

It was about midnight when the lights went out in Brussels.  It happened during a 1965 meeting of the foreign ministers of the six member countries of the European Community, the forerunner of the EU.

I was the only American present, serving as an “official spokesman” for the international staff.  That night, I could not realize that I was witnessing a piece of history that would play out in 2021.

Soon after the lights went, so did the French foreign minister.  Refusing to be outvoted on a policy that France opposed, he walked out. He stayed out six months until the others caved in.

After World War II, France, Germany, Britain and the U.S. promoted the idea that by integrating the economies of Western Europe, a third world conflict could be prevented.  That would remove a major threat to Britain and offer the U.S. a strong ally rather than yet another world war.

General Charles De Gaulle, the leader of France’s comeback against Nazi Germany, was the French president.  While he favored ties with Germany, he disliked the British and worried about American influence on Europe through its English-speaking ally. He believed France could lead Europe.

De Gaulle openly sneered at the “Anglo-Saxons” – Britain and America.  He wanted a European defense force independent of the U.S. and would quit NATO military cooperation.   In 1963, France vetoed Britain’s application to join the European Community. I joined the international staff that year, and the French were not pleased.

In 1967, Britain tried again. This time it was led by British Prime Minister Harold Wilson and most Brits favored the application. By then I was a journalist and one evening joined three British colleagues in Brussels to have a beer with Wilson, who laid out his strong case for membership.

Through its walkout, France had made sure it dominated European affairs, so it was no problem for De Gaulle to dash Wilson’s hopes.

After the French tired of De Gaulle and he left the presidency, Britain was at last able to join the European Union in 1973.  In succeeding years, the Brits proved some of what De Gaulle had said was correct.  The U.K. demanded special treatment to protect its own historic ways of governing.

As Europe continued economic integration, Britain increasingly found itself forced to follow rules made by the EU, including admitting workers from Eastern Europe. Putting their seal on De Gaulle’s objections, in 2016 the British people voted to leave the EU. Painfully, by 2020 Brexit had happened.

De Gaulle’s forecast lived on.  It has just cropped up again last month, and this time the U.S. played the central role.

The U.S., U.K, and Australia have just agreed to the AUKUS pact, giving the Land Down Under its own nuclear submarines.  The Aussies and Brits could help the U.S. discourage China from deploying its growing fleet to back its false maritime claims in Asian waters. The U.K. already has its warships there.

But Australia had previously agreed to buy from France diesel-powered subs, vessels not really up to the task.  It suddenly reneged, though no AUKUS participant gave the French much advance notice. Not only had France seen Britain quit Europe, but it also saw the U.K. throw itself into an “Anglo-Saxon” alliance.  Echoes of De Gaulle.

The split could encourage French President Emmanuel Macron in his efforts to promote a European political-military operation independent of the Americans and British.  Since Donald Trump, who favored Brexit and spurned NATO, European trust of the U.S. has fallen.

The result might yield an independent Europe rather than a dependent U.S ally.  That could force the U.S. to take account of differing and sometimes opposed European strategies even if developed by countries that share many of America’s views of the world. 

But there’s also a broader lesson from this story. 

Every day, news reports arrive accompanied by instant analyses of what events mean.  Heated and hasty opinion drowns out the news. 

When Trump or Biden have made controversial moves, the pundits have wasted little time drawing conclusions and pontificating about dire long-term effects.  What seems to be a major mistake often fades in importance, hardly derailing the presidency. The analysts’ views mostly reflect their biases, which they want us to swallow.

When De Gaulle vetoed the British, my instant analysis, based on my biases and wishful thinking, was that he would be proved wrong. It looked that way for a while.  Now, Brexit and AUKUS show “the General” nailed the Brits.  It only took 58 years. What goes around, comes around, sometimes awfully slowly.

The lesson? We should pay more attention to knowing and understanding what’s happening, not let our biases overwhelm our thinking, and skip snap judgments on current events. 

Despite rush to unity after 9/11, U.S. remains historically divided

 

Gordon L. Weil

As the U.S. marked the 20^th anniversary of the 9/11 attacks, the pundits came out in full force. 

Many lamented that the sense of national unity in 2001 had been so quickly replaced by deep divisiveness.

The Al Qaeda attacks gave all Americans, regardless of their political views, a common enemy.  The country immediately united, and Congress granted the federal government unusually strong powers to fight terrorism.  A token of that common commitment was the Patriot Act, giving the government the power to violate privacy.

At two earlier major turning points in American history, people had also displayed national unity. At those times, most Americans understood they faced a common adversary.  Yet, beneath that unity, a deep split existed.

The first event was the war against Britain to win American independence.  The Declaration of Independence of July 4, 1776 is mostly a long list of bitter complaints against the British king for failing to give the colonists, most having British origins, the same rights as their fellow Brits. Instead, he treated them as second-class underlings.

The opposition to arbitrary British rule was strong enough to yield independence even among people that could not agree on treating their African underlings as they wanted to be treated by the British.  On slavery, Americans were deeply divided.

Southern colonies threatened not to join in declaring their independence if the northern colonies insisted on condemning slavery in line with the theory that “all men are created equal.”  For them, slavery might be more important than independence. 

The North wanted independence above all and dropped a reference to slavery from the draft Declaration.  That decision, papering over a deep split, may be the basis of the centuries of divisiveness that have followed.

Another wave of national unity came after the Pearl Harbor attack on December 7, 1941 that brought the United States into World War II.  Divided just the day before, the country unified to fight the Nazis and Japan. Once again, deep differences, this time over the huge economic and social changes brought by President Franklin D. Roosevelt’s New Deal, were set aside.

In these two cases and the reaction to 9/11, Americans showed they would unite against a common foe.  But divisiveness, so much deplored today, was always present. Unity in favor of a common goal, other than winning a war, has always been elusive.

The common theme of divisiveness goes back to the Revolution and continues uninterrupted today.  The conflict over race could have been settled by the Civil War, but it wasn’t. The North won its cause of preserving the Union.  But the South won its cause of preserving racism.

Just as the colonies had rebelled against Britain, the Confederacy rebelled against the United States.  The American flag became a worldwide symbol against tyrannical rule, and the rebel flag became a national symbol of resistance to government limits on a person’s rights. 

The Confederacy’s Stars-and-Bars came to represent the assertion of individual rights against government.  That sentiment extended to opposition to official authority on many issues, and the Confederate flag could be seen all across the country.

In recent decades, it was finally recognized as a symbol of racism, which became increasing difficult to profess publicly.  Only with the arrival on the national scene of Donald Trump was the stigma of harboring racial prejudice somewhat relieved through attacks on “political correctness.” 

Trump flags fly as Confederate banners once did. Like the Confederate flag, they may mean less about Trump as a political figure than serving as an expression of personal defiance of governments, seen as limiting personal rights.

Today, a conflict exists between governments that require vaccinations and wearing masks to control Covid 19 and opponents who believe that such demands violate their personal rights.  At its core, this conflict is political and regional.

Eleven states in the South joined the Confederacy, trying to break away from the United States to preserve slavery.  Now, nine of those states are among those with the worst vaccination records and nine, duplicates except for one, are among the states with the highest case rates.  Only Virginia is absent from both lists.

Nine of the formerly Confederate states voted for Trump in 2020. Most are trying to change their voting rules to undermine expanded voting by African-Americans and Hispanics to ensure that traditionally conservative GOP control can continue.

While Americans may unite against a common threat, history shows more evidence of division that it may have its roots in the compromise that brought 13 colonies together to declare their independence. It has deepened as the two sides reach almost equal political strength.

Divisiveness is American, and the battle between public health and individual rights amounts to another Civil War.  The depth of division may, as before, threaten the American system of government.

Supreme Court rules on abortion as Congress defaults; becomes real federal legislature

Gordon L. Weil

The U.S. Supreme Court just sent a strong signal that it could soon change its collective mind and rule that a woman has no constitutionally protected right to have an abortion.

By taking no action on an appeal to suspend a new Texas law, it took a giant step toward acting as the national legislature.  It took charge, because of a vacuum left by Congress.  Forget about three equal branches of government and their checks and balances. 

The Court allowed into effect a Texas law that limits access to abortions to the point of eliminating it.   Texas tried to dodge responsibility for its own law by only allowing private parties to enforce its extreme terms.

Congress has passed no abortion rights law, leaving the Supreme Court to create such rights. That makes it the federal lawmaker, despite claims by justices that they only apply the law but do not make it.

All nine justices recognized that Texas wants to outlaw abortions. What the Court has legislated as a right, it looks about ready to repeal.

Justices understood that, by allowing the law to go into effect, abortions in Texas would stop.  Providers lack the resources to withstand a possible flood of cases, even if many have no factual basis.  The law raises major political and constitutional issues.

The five-member majority quietly let the law go into effect, leaving abortion providers to find some way to bring an acceptable legal action against it.  It is possible, they noted, that a Court decision more than a century ago could block it from second-guessing state courts.

Chief Justice John Roberts wrote that the law should be suspended until the federal court system ruled on it using normal legal filings and hearing procedures.

Roberts was supported by the three justices considered to be liberals.  But they also noted that, in their view, the Texas law violated the Court’s own earlier decisions allowing abortions.  

The Court long ago adopted the principle that it would usually stick to earlier constitutional decisions on which people relied.  Sen. Susan Collins said that, before voting to confirm Brett Kavanaugh as a justice, he agreed that abortion rights were such “settled law.”

The Court chose one earlier decision, limiting its ability to overturn a state’s action, over another, a woman’s right to an abortion in the first three months of pregnancy with no state allowed to stop it.  Before ruling on the constitutional conflict between its decisions, it effectively decided – for the state.

Its refusal on procedural grounds to delay the Texas law permitted a result that it had previously found illegal.  That way of thinking could ripple across the states on other issues, and that’s why Roberts wanted first to follow usual judicial procedures.

Whatever the effect of the Court’s failure to act, it deployed a method it increasingly uses to avoid taking clear responsibility.  It has reduced the number of its formal decisions, substituting the so-called “shadow docket” to make major rulings.  Under it, without hearings or legal briefs, key decisions are hidden by making them seem only procedural.

The Trump administration sought such quick action 41 times in four years and won 28 times.  In the 16 years of the G.W. Bush and Obama administrations, it was used only eight times. It seems conservative justices prefer fast answers and little transparency.

The Democrats may have worried about losing a vote to establish a federal right to an abortion, which would put the Roe v. Wade decision into law.  But public opinion now seems to encourage such a bill, and House Speaker Nancy Pelosi says one will be offered.

While such a bill might pass in the House, its success in the Senate is less likely.  Still, the Democrats see the Court’s shadowy feint at repeal of Roe v. Wade as a winning political cause for them.

Congress has the constitutional authority to shape the Supreme Court’s powers. It could control the use of the shadow docket and even limit the Court’s ability to determine if laws are constitutional.  That power is itself derived from a Court decision in 1803, not from the Constitution.

President Biden has created a commission to look into the Supreme Court.  Should the Court be enlarged to reduce conservative control?  Court packing is not politically popular, but there’s a way to appoint temporary federal judges. They could redress the political balance and then gradually be phased out as vacancies occur.

Whatever comes from the Texas matter, action to reverse the unelected Court’s growing legislative power seems overdue.  For Congress to regain the elected branch’s control of legislation requires the Senate to end the filibuster so that both houses can make decisions by majority vote.