Our starting point, however obvious, has to be stated unequivocally: the Constitution of the United States only exists insofar as it is supported by the Supreme Court. That’s just fact. Based on the form and content of the Supreme Court’s Texas decision, the Constitution no longer exists.
We’ve seen the Court stretching things before. The Citizens United decision had nothing to do with the intentions of the founding fathers. The pretext there was weak enough that you wondered if anyone really believed it. Some of Kavanaugh’s recent decisions were worse. However the Texas decision is a sea change. They no longer find it necessary even to come up with pretexts. There was no arguing of the case, and the statement of the majority said little more than that they had the power to do it so they did. Their preferred mode of operation now seems to be “shadow-docket” decisions, where nothing gets said at all.
Despite all that is written about checks and balances in government, sovereignty is indivisible. Someone always has the last word, and in the US system that someone is the Supreme Court. It is the least democratic of institutions and the only one with absolute power. There is no constraint on the scope of it’s decisions or on the rationale to be used in reaching them. And no mechanism to appeal the results.
This is not just about women’s health, serious as that may be. It’s easy to take over the country through the Court, and this Court has shown itself ready for the job. Voting restrictions of any sort will stand unless the Court strikes them down. Increases and decreases in government power are matters of what is or isn’t allowed. If the Court outlaws regulation of business (a current Republican project) then that’s that. Same for healthcare. The free press (already a problem) is what they choose to make of it.
Our current radically-unrepresentative Court (you can’t even call them conservatives) has now served notice that it is ready to act as it sees fit, without constraint of prior decisions or even the need to come up with arguments. That’s the tipping point. Just as with the last election, democracy itself is at stake. Because of the Court’s power, nothing short of reforming it will work.
So we have to enlarge the Court. To do that we need to end the filibuster. The Supreme Court has set down a challenge to democracy, so the time to act is now.