How To Save America From An Anti-Democracy Supreme Court

The moths kept showing up, fluttering around corners of our kitchen, dying near the cereal boxes and granola bags and snack baskets we keep in the pantry. I didn’t think much of it. 

My wife was not thrilled about my tolerance for bugs in the kitchen; she was far less tolerant of our winged friends. I had blog posts to write and podcasts to record though. I’d figure it out later, perhaps when the moths had enough time and resources to descend on my little dog and carry him away. Then I would take action. Poor Ziggy. 

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One morning our Moth Situation became too much to bear. We swept up the dead pantry moths in the corners of the pantry, along with their eggs and whatnot. It was disgusting. But they kept showing up, morning after morning. The whole thing became too gross even for me, a guy cursed (blessed?) with hyper-fixation issues that force (allow?) me to ignore shit that requires my attention. We had to find the source of our Moth Situation. We had to find the hellmouth from which these pantry horrors were emerging. 

My wife and I cleared every inch of every shelf in the kitchen. She was the captain, shouldering most of this thankless burden, doling out orders on how, exactly, we would rid our kitchen of this moth menace. We tore up the kitchen and wiped down every surface. Eventually we came upon the hellmouth: My (mostly) closed container of sunflower seeds, stuffed in the corner of the pantry for somewhere around two years because I had not been hyper-fixated on sunflower seeds for that long. Inside the container of stale seeds – David BBQ flavor, if you must know – were piles of pantry moth eggs, a whole burgeoning civilization of creatures born into a cornucopia of tasty pantry snacks in our humble suburban Maryland home. I felt like the characters in every Alien movie who stumble upon the pulsating Xenomorph eggs ready to hatch and latch on to the unfortunate astronauts’ faces. Thankfully there were no chest-bursters in my case. Not yet anyway. 

When I found the hellmouth, I didn’t think twice: I snatched the sunflower seed container – the moths’ miniature barbecue-flavored Eden – threw the thing in the trash, and took the trash bag out to the trash bins. The hellmouth had been eradicated, the source of the problem solved, even if I couldn’t stop gagging for a while. We haven’t seen a single pantry moth since trashing the Seed Container of Horrors. 

Constitutional originalism, as Bad Faith Times readers certainly know, is the font from which all right-wing bad faith flows. It makes its way into every crevice of American life. No policy, no law, no lower court decision, no single political issue is unaffected by this bad-faith legal theory, which might be the only thing that matters in American politics since the Supreme Court’s radicalized conservative supermajority has adopted originalism as its guiding light in reshaping the country into a pseudo-monarchy, a misshapen, bastardized democracy in name only – the Republican dream for at least a century. 

If American pro-democracy elected officials can’t stop the flow of this all-consuming bad faith, there is – as I wrote with no pleasure last week – no real chance for a progressive future in the United States. Pro-democracy congressional majorities and even a pro-democracy president can sweep into power and make all manner of desperately-needed reforms and pass all kinds of laws to make American life a little less brutal and undignified, and it can all be swept away by a captured institution that injects itself – and its originalist bullshit – into everything. Imagine a universal healthcare bill passing though Congress, being signed by the president, and immediately being nuked by Clarence Thomas. This is no way to run a country.

As I’m writing this, the SCOTUS supermajority is considering overturning ninety years of American jurisprudence to expand their god-king’s powers to include the firing of independent federal government officials. One of the Court’s more subtle anti-democracy justices, Neil Gorsuch, is openly wondering if the Court is “setting our sights far too low and we should be blowing up many more structures of modern government?” 

Gorsuch is asking this not because he believes eliminating federal agencies is constitutional or valid legal theory, but because he likes the guy in the White House and wants to unleash him to do his worst in reshaping the nation in his hideous image. If you’re skeptical – and you’re probably not – ask yourself: Would Gorsuch ask this question with a Democrat in the White House? Another question to consider: How quickly would this radicalized Court majority reign in executive power if a Democrat wins the presidency in 2028 or 2032 (elections the doomers don't believe will happen).

The bad faith of this current SCOTUS case goes like this: The anti-democracy SCOTUS majority must pretend to believe the president should have unencumbered power to run every part of the executive branch as he sees fit, including who runs federal agencies. Part of this pretending is acting as if Congress does not exist and is not charged with keeping federal agencies accountable, as Congress has done for generations (this allows the justices to dismiss agency heads as "unaccountable bureaucrats," which usually just means "Democrats").

The anti-democracy justices can point to constitutional originalism as a legitimate legal theory that can be used to reinterpret every single Supreme Court precedent over the past century of slow and painful but very real progress. Originalism validates their warped views of what the US should be: A country ruled by one man whose politics they support. 

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

Chief Justice John Roberts, who has supported legal justification to create an American king since the mid-1980s, said in 2010 that the president's power should include “the authority to remove those who assist him in carrying out his duties. Without such power, the president could not be held fully accountable for discharging his own responsibilities.”

Funnily enough, he didn't pursue this unleashing of unchecked presidential power when Barack Obama was president. Weird how that works.

No democratic republic can go on like this. It is untenable. Some on the American left understood this in their marrow fifteen years ago; others didn’t succumb to that gnawing feeling until the country elected its first tyrant.

Nothing can be done to advance the US out of this authoritarian rut unless the root of our bad faith problem is addressed. The right-wing pantry moths will keep showing up, keep fluttering around our national kitchen, and we’ll go on with our lives hoping we can ignore the moths. The hellmouth, meanwhile, sits in the recesses of the pantry, producing more and more moths. These moths are smiling, knowing you can wipe them away but never be rid of them.

Red-Teaming A New Democracy

I understand that SCOTUS reform and expansion is a heavy lift, maybe the heaviest lift in the history of American politics outside of the Civil Rights Act. It would require an entirely new version of the Democratic Party, free from the fecklessness and fear and obsessive bipartisanship of the party’s current leadership, to Do The Damn Thing and add four or five new seats to the Supreme Court and fill those seats with pro-democracy jurists whose loyalty is to constitutional self rule, not a billionaire octogenarian who takes them on fancy camping trips. 

If that's the case – if Court expansion is indeed too ambitious for the technocratic Dems – then there might be another avenue to short circuiting the SCOTUS majority's total control over national policy and political life – one that's been used in developing nations trying and sometimes failing to establish constitutional rule.

American institutions, thanks in large part to Roberts, the overseer of the country's decline, have been reduced to developing nation status amid the authoritarian war the Trump regime has waged over the past year. Regime officials are outright ignoring court orders and asking, in so many words, what the fuck are you gonna do about it? And the answer from the courts is always: Well, nothing, I guess. I just thought you'd listen to me.

This has left the next pro-democracy Congress and president no choice but to rebuild our institutions into more robust versions made to fend off anti-constitutionalists both in the White House and on the Supreme Court. An outsized part of that robustness required to defend and uphold democratic self rule despite the results of a single election would be preemptively guarding against bad-faith legal attacks – the kind that have been carefully crafted for decades in the bowels of far-right think thanks that exist to undermine the rule of law and the basic underpinnings of democracy.

Think of the way modern day Republicans have intentionally misinterpreted Civil Rights law to say (in bad faith) that white children in the United States face widespread, systemic discrimination thanks to pro-diversity policies on the federal and state level. The right has taken a good-faith law protecting marginalized populations in the US and twisted it into something hideous and unrecognizable, a defense of and justification for their petty hatreds and discriminatory beliefs about who should and who should not have a dignified life, protected by the law from groups that have historically sought to use power against the marginalized and underrepresented.

We Are The Only Check On Trump

It is our duty as Americans is to again say no to fascism, to the remaking of American life by the worst among us.

Bad Faith TimesDenny Carter

Elected leaders in developing nations with emerging democracies have for generations had to guard against bad-faith interpretations of their new laws and constitutional principles. They've had to make every effort to safeguard their new and vulnerable republics from those who would tear it all down if they could. We've seen this unfold to varying extents in Bangladesh and Indonesia, where pro-democracy leaders have tried to create a government structure that can't be wrecked by would-be dictators.

Any reforms or laws that emerge from the political wasteland we face in the coming five or ten or twenty years has to exhaustively cover every way anti-democracy forces could storm in and unwind the whole project. Laws must be written in anticipation of our captured Supreme Court quickly throwing the law onto their wretched Major Questions Doctrine plate, carving them up, and eating them whole.

I won't pretend to know how this can be done. I am but a blogger. So I asked someone who might know.

Michael Karanicolas, Palmer Chair in Law and Public Policy at Dalhousie Law School in Halifax, Nova Scotia, told me about how emerging democracies have preemptively fended off attacks from those opposed to the power-sharing agreements that make a republic work – forces that would come up with myriad bad-faith arguments as to why these agreements and structures were unfair or discriminatory or dangerous, or move too slow, the way fascists have always argued against democratic governance. The most important step, Karanicolas told me, was "red-teaming hostile behavior and introducing institutional checks and balances, which the American system is astonishingly bad at, considering how it's supposed to be so deeply ingrained in the constitutional system."

Red-teaming, for the unfamiliar, is a process for testing cybersecurity effectiveness wherein ethical computer hackers conduct a simulated, nondestructive cyberattack that helps an organization or government identify and fix potential vulnerabilities. Identifying exactly how an adversary would hack a sensitive system can "give organizations a way to proactively uncover, understand and fix security risks before threat actors can exploit them," according to an IBM report on how tech companies have effectively red teamed their systems. "Red teams adopt an adversarial lens ... and leverage various hacking methodologies, threat emulation tools, and other tactics to mimic sophisticated attackers and advanced persistent threats."

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

The US needs a hack-proof government. In the creation of a stable system of checks and balances, a red team might include former Republican operatives and right-wing activists who have soured on the authoritarianism and anti-constitutionalism of the current Republican Party, an outlier party that would not exist in most developed democracies.

Bill Kristol comes to mind. He's a the longtime advocate for all manner of hideous far-right, imperialist causes and a cheerleader for the catastrophic (and blatantly illegal) Iraq War who has turned hard against the Trump regime in recent years. Woke Bill Kristol talks a better pro-democracy, anti-fascist game than anyone in Democratic Party leadership. Kristol, based on his defense of constitutional self rule and his decades of experience in the fascist snake pit of conservative politics, would make for a good red teaming leader. His familiarity with the right's insidious bad-faith game would serve the country well if we were ever interested in shoring up the institutions that instantly bent to the will of our first strongman (If 20-year-old me read these nice words about Kristol, he would travel into the future and punch 42-year-old me in the mouth).

The central problem with U.S. institutions – the reason they were so easy to topple even for an incompetent, viciously anti-intellectual president – is the underlying assumption that every president for the rest of time would play by the same rules and observe the unenforced restrictions on executive power. "The U.S. approach really leans heavily on the idea that the executive branch will do the right thing and the voters will just hold them in check," Karanicolas said.

When voters are hypnotized by their phones and don't hold anti-democracy candidates accountable – like I thought we would in 2024 – we're left with an emergency, one with no clear solutions since impeachment is a dead letter.

It's why young American liberals in the early 2000s panicked about the new and dangerous powers given to the executive in the wake of the September 11 attacks. We were told to shut the fuck up and support the troops, but we were right. You might trust George W. Bush not to operate as a dictator, we said, or Barack Obama after him, but a would-be tyrant now has all the runway he could ever want to tear our shit to pieces if he manages to sneak into the White House. The stakes for American democracy cannot be that high, that fraught, every single election cycle. It's not sustainable, and it's certainly not good for the mental health of American voters who see every election as existential.

Karanicolas told me "security of tenure and independence of appointment in certain key offices is a big one" in establishing a durable democratic republic. Creating independent offices has been a goal of emerging democracies striving for a working government that can't be easily toppled by the nation's internal enemies. Destroying the very concept of independent government appointments and offices is of course what they anti-democracy SCOTUS justices are determined to do in the aforementioned Court case against federal agency appointees could be fired for not bowing to the president's agenda. Our democracy is regressing in ways that won't be apparent until it is.

The goal of the post-Trump era – whenever that might start – has to be a restructuring of American governance that ensures the country survives even if a huge piece of anti-American shit sweeps into power. The existence of the republic itself can't hinge on a Republican winning a presidential election every once in a while. That the Democrats' plan in 2020 was to simply win every election for the rest of time illustrates the absurdity and unworkability of this arrangement.

That starts with neutering the anti-democracy Supreme Court majority that has been at war with good-faith judges and courts across the country for the past decade. The right-wing hatchet men (and hatchet lady) on the Court are intentionally creating the conditions of one-party rule and the permanent end of constitutional self governance. You see this with every major question they take up, every national issue they decide by themselves.

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