Has SCOTUS Shortened The Political Pendulum?

It was a question, like so many in my Bluesky mentions, that made me think about something I'd rather ignore.

Has the Supreme Court's radicalization and anti-constitutionalism created an effective counter to the kind of political pendulum swinging I referenced in a recent Bad Faith Times piece on authoritarian entropy and refusing to believe the simulation of consolidated authoritarianism that the Trump regime has worked so hard to build? Has a far-right supermajority on the nation's highest court stopped the pendulum from its natural swinging motion, powered by people and lawmakers and those in charge of institutions who get tired of one thing and try another?

I got quite a bit of thoughtful feedback about the simulacrum (imitation) of fascism generated by regime officials, but it was that question that stuck with me, like a bit of apple that works its way into your molars and leaves you no choice but to get your ass off the couch – more annoyed than you've ever been in your life – and get some goddamn floss. How had I not considered the impact of SCOTUS radicalization when I had read and watched various (sober) analyses of how and why seemingly unstoppable regimes crumble?

For more analysis of how Supreme Court conservatives have leveraged legal bad faith to favor the country's fascist movement, click here and here and here and here

I thought back to the Biden years, when John Roberts and the Court's five other right wingers torpedoed one moderate, reasonable action after another from an administration that had largely embraced a left view of economics that the Obama administration had mostly rejected. For all his (crushing, republic-jeopardizing) failings, Biden and his people tried to make life slightly better for Americans who had quickly soured on the incompetence of the first Trump administration, which was more stupid than evil, though it checked both boxes.

The Roberts Court functioned as a concrete backstop against any and all progressive policy making Biden's administration tried. This, naturally, had been the plan all along. Democrats may occasionally stumble into power, the right knows, but that power won't mean all that much as long as we have a radicalized counter at the top of the judicial branch that will act in ruthless partisan ways to get in the way of a full pendulum swing. The Roberts Court stood in the way of almost everything the Biden administration tried to do over four agonizing years.

-SCOTUS in 2022 outright rejected modest gun control efforts, and in 2024 it invalidated a federal ban on "bump stock" devices that allow people to modify semiautomatic weapons so they can be used like machine guns. You know, for war against people who disagree with them politically.

-The captured Court in 2023 rejected race-conscious college admissions policies defended by his administration that long had been used by colleges and universities to boost their numbers of students of color. This ruling came as a shock even to the most cynical SCOTUS analysts.

-The Supreme Court in 2024 overturned a landmark 1984 legal precedent that had given deference to federal government agencies in interpreting laws they administer. With one swipe, this killed all of Biden's environmental policy goals, and those of future presidents who care about sustaining life on earth.

-Clarence Thomas and Sam Alito in 2023 led the charge in blocking Biden's $430 billion student loan relief plan, designed to provide a little relief for folks who had done what they were told, gone to college, and been saddled with debt that they wouldn't pay off until they were Biden's age. Other right-wing hack judges stymied more modest student debt relief efforts crafted by the Biden administration.

The Belligerent, Bad-Faith Bullshit of SCOTUS’s Major Questions Doctrine

Creating an impenetrable force field through which no progressive public policy could pass was always going to be a two-step process for the American right. And the second step is more infuriating – and for the left, more vexing – than the first. The first step in creating a right-wing backstop against

Bad Faith TimesDenny Carter

These highly politicized rulings meant to block all progressive policy making are more than just political attacks and an undermining of a president's mandate to follow through on the agenda on which he campaigned. These rulings supercharge cynicism within the populace, nourishing the Nothing Matters crowd, vindicating their nihilism. Good and bad things are the same, they say, pointing to Biden's inability to push through economic measures that would have benefited regular working people without really understanding why those policies never came to fruition. This nihilism feeds itself until you have huge swaths of the American populace embracing very dark ideas about ways out of this political nightmare.

A Supreme Court that takes its pendulum-stopping duties this seriously creates armies of Americans who tune out because nothing – as they've seen – can ever get any better. These are the folks who think Biden overturned Roe. These are the folks who think Biden opposed continuation of the child tax credit. These are the folks who tune back into the political noise two weeks before an election because the algorithms on their phones are making one particular candidate look cool and based.

I'm not dooming here. There is a solution to this so clear as to be painful. A full pendulum swing is possible if – and only if – the Supreme Court is saved via fundamental reform. Biden, as we at BFT have said ad nauseam, did not do what was necessary and expand the Supreme Court as his first action in office, and he paid the price. Future Democratic congressional majorities and presidents can pass everything on the Big Lib Wishlist and it will all be for absolutely fucking nothing as long as anti-constitutionalists have the Court's majority.

Imagine A Pro-Democracy Supreme Court – If You Can

The United States can’t be saved unless SCOTUS is saved first

Bad Faith TimesDenny Carter

And if you think a future Democratic president will enjoy the spoils of an imperial presidency like Trump's, you haven't grasped the bad faith in which Roberts and his ilk operate. The most politically useful part of constitutional originalism – the font from which all bad faith flows – is that it can be whatever you want it to be. The founders meant whatever you want them to have meant, according to originalism. It's like right-wing evangelicalism in that way: God wants exactly what I want and there's nothing you can do about that. Originalism offers a similar convenience: Those who wrote the nation's founding documents wanted exactly what I want today, 250 years later. They wanted bump stocks, they wanted racist gerrymandering, they wanted Americans to be racially profiled by a masked secret police force acting above the law, they wanted unchecked industrial pollution in every corner of the country, they wanted copays and did not want a government healthcare option, they wanted people to be crushed by student loan debt forever and ever, amen, and they wanted one man in particular to be above the law. They founders told me all this in a dream. Just trust me.

I promise you, in a future Democratic administration, the Court's right wingers will come up with some rationale for rolling back the monarchal powers granted to Donald Trump, the idiot game show host for whom the constitutional was shredded. For Donald Trump, Roberts said the nation's laws do not apply to the president. What he meant was clear: The nation's laws do not apply to Trump and Trump alone. They will absolutely apply to any future president Roberts deems unworthy of the office. There will be no imperial Democratic presidency on their watch.

Thankfully that leaves elected officials with one choice: To undo the far-right capture of the Supreme Court with various reforms and expansion. I don't know if that means four new justices or six or ten, but it has to happen if America's political pendulum is going to ever again swing freely, if the will of voters is ever going to be expressed via executive and congressional policy making unencumbered by staggeringly corrupt bad actors sitting on the nation's highest court.

I'm not without hope on this front. We've seen insurgent congressional candidates who take SCOTUS reform seriously emerge over the past year. That includes, of course, BFT favorite Alex Rikleen, a U.S. Senate candidate in Massachusetts who told me a while back that Democrats who believe better things are possible without Court reform are "living in a land of make believe." And that's true: Too many on the left have somehow not yet come to grips with what must be done if American democracy is going to have any 21st century shelf life. "The most important initiative will be to fix the current Court," said Rikleen, who is challenging invisible Senator Ed Markey in 2026. "This can only be done through expansion, impeachments, or both."

The idea of expanding and cleaning up the dirty Court – once a kooky notion floating around the fringes of lefty discourse – has taken its proper place in the dead center of liberal-left ideas for how to dig out of this big, dark fascist hole we live in today. From 2021 to 2024 we saw what it looks like when the political pendulum is not allowed to swing the way it would in its natural small-d democratic state. With a normal high court, all of Biden's policy initiatives would have become law. He would have been allowed to deliver on a domestic agenda Democrats failed to pass in their short period of government domination (2009-2010). Instead, Roberts and Alito and Gorsuch and the rest of this highly abnormal court grabbed the pendulum and said no, you're not swinging anymore.

Until anti-constitutionalists no longer comprise the SCOTUS majority, the swing of the pendulum has, at best, shortened. Their goal is stop it altogether.

Follow Denny Carter on Bluesky at @dennycarter.bsky.social.