modernheretic

On July 12, 2023, the United States Department of Education sent student loan debtors an e-mail in which it undermined the legitimacy of the Supreme Court of the United States—the highest court in the land with the supreme authority to decide constitutional questions—by boldly asserting that the Court made the wrong decision in repealing Biden’s debt relief program. The Biden administration is outrageously impugning a coequal branch of government and conditioning the American public to think the Supreme Court is wrong for fulfilling its constitutional duty to check abuses of executive power. This is an unacceptable attack on the theory of limited government that forms the very foundation of our political system. It belies the Democrats’ desire to wield unlimited executive power with no checks and balances, a desire, in essence, for a dictatorship.

The Department buried the lede in the middle of the e-mail when it stated that it would follow the rulemaking process “as an alternative.” Therein lay the problem that resulted in a Supreme Court smackdown. Rulemaking is not an “alternative” process. It is the process for bureaucratic agencies to make policy. Democrats do not get to selectively choose when they follow the rule of law and when they do not. That the policy in question is highly sympathetic and popular (in part due to the fact that executive abuses of emergency powers over the last years tanked the economy and destroyed people’s livelihoods) in no way absolves Biden of the need to follow the Constitution, which requires major policies to be enacted through the legislative branch (Since it seems a reminder is needed, Congress has exclusive power to make law in the United States, a power the president rightfully lacks.) or, if Congress already delegated such power to an executive agency by statute, the agency may create policy through a standard rulemaking process, which the Department of Education is now grudgingly going to attempt.

Biden is completely in the wrong for trying to sidestep the legitimate processes and is compounding the error by signaling to his base that it is the Court that is wrong for daring to check his abuse of power. The Progressive wing of the Democratic party is actively working to undermine the legitimacy of and confidence in the Supreme Court. In addition to the Biden Administration openly calling the Supreme Court’s decision wrong, the Progressives have been strategizing about how to remake the Supreme Court since Trump’s election. From expanding the Supreme Court and filling the new appointments with their own loyalists (“court packing”) to eliminating the lifetime tenure implicit in Article III of the Constitution, Progressives are determined to seize control of the Supreme Court. Now Progressive organizations like the Brennan Center are telling their followers that the “Supreme Court is out of control” in an attempt to rouse Democrats into calling for term limits for the justices, an idea that Biden’s administration introduced in 2021. Progressives claim that radical changes are necessary to ensure that the Court reflects the will of the people, but that is a pretext.

First of all, the Supreme Court is not meant to be a populist institution. The American public knows nearly nothing about the rule of law or constitutional interpretation, which is why we sometimes have polls where portions of the public support patently unconstitutional measures like detention camps for dissidents or the silencing of vaccine critics by government. It is necessary to have a branch of government that will hopefully uphold the dictates of the Constitution even when doing so is unpopular. Any majority is intrinsically tyrannical, and it is the Supreme Court alone that protects the interests of the minority that would otherwise get lost in the popularity contest that is democratic politics. And even then, the courts are not immune from bowing to pressure from the public and the executive branch, but it is the best we have.

The argument that the Supreme Court needs to be more populist is comical coming from the Progressives, whose ethos is decidedly anti-populist. They cannot stand to have classes of people who can make decisions for themselves and disobey the dictates of the elitist “expert” class. Their disdain for populism is apparent whenever they have to confront the reality that large portions of the population are not subservient to Progressive interests. In the aftermath of Trump’s election in 2016, they strategized about how they could save the country from the supposedly ignorant rubes who were, in their eyes, stupid enough to vote for an un-progressive candidate. And during the pandemic, Progressives openly opined about the need to “educate” and punish people who disagreed with their take on the vaccine.

That is the Progressive response to populism in a nutshell, to condescendingly sneer at people for making different choices and try to brainstorm ways to override those choices in the future. To Progressives, a majority of the population deviating from Progressive goals is not a legitimate expression of the will of the people, but a problem to be fixed so that the will of an elitist minority succeeds at any cost regardless of what the people want. Progressives want the power to force every person to comply with their beliefs, and in recent years they have been pushing past the limits on government power to make that happen.
Redefining the institution of the Supreme Court is Progressives’ way of trying to ensure that the Supreme Court, like most of the political and media establishment, cater to the interests of the wealthy, urban, coastal elite. The Democrats are frustrated because they missed their opportunity to profoundly impact the composition of the Supreme Court when they failed to get enough of their base motivated enough to vote for Hillary Clinton in 2016. Now they see a future of unfavorable court opinions, and they are looking for an end run around to ensure the court reflects their own values.

The real solution to many of the court opinions they find disagreeable is to get Congress to enact legislation protecting the interests that they feel are so important, but they know that will be nigh impossible. They cannot win the game of politics fairly in a polarized culture in which they view opponents as evil, so they seek to change the rules of the game to rig it in their favor. They believe that they cannot win legislatively because they do not have the support of a sufficient majority of the population to make policy democratically, so they need to control the one undemocratic branch of government in order to foist their beliefs on the entire population. There is a certain hypocrisy in their reliance on the anti-populist branch of government to further their own anti-democratic aims while attacking the Court for that very reason.

That is why Progressives are waging a years’ long campaign to stigmatize anyone who continues to maintain support of freedom and rule of law as “conservative,” a label that is used by Progressives as shorthand for wrongful. When legacy media outlets like NPR reported on the Supreme Court decision, they treated the outcome as a win for conservatives, as though no one but conservatives favor a liberal government that has to operate within the confines of the Constitution. “Conservative” has become a dog whistle to signal to the Democratic faithful that whatever follows—whether a Supreme Court decision, valid scientific data, or the actual will of the people—is illegitimate. So successful has this strategy been that Progressives consistently employ it against avowed liberals and leftists who criticize the dangerous turn the Democratic party has taken in recent years, thereby negating the impact of dissenting voices from within. It is no longer about left versus right; to the Progressives, everyone who questions their agenda is on the right.

No, this is about democracy versus despotism. Progressive seek to wield the power of an unlimited executive branch that cannot be questioned by any individual nor checked by any other branch of government, an executive branch that displaces Congress by unconstitutionally and unilaterally creating law and which has the immense power of the digital technology apparatus to surveil, censor, and manipulate the public to eliminate political opposition. In essence, the Supreme Court is all that stands between us and a functional dictatorship. The Democrats know this, and that is why they are waging war on the very legitimacy of the institution.