The American Taliban Has Seized Our Courts and It's Time to Take Them Back

Biden and Congress must unpack our courts and free women and working people

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The American Taliban is having its moment, and billionaire groups are riding its energy toward larger and larger profits and control of government. In the process, it’s all showing how dark-money right-wing groups have corrupted our Courts.

On CNN this past weekend, Arkansas governor Asa Hutchinson told Dana Bash that the main reason he signed an anti-abortion law that would put women in prison for getting abortions, even if they were the victims of rape or incest, was because he wanted it to go to the Supreme Court.

His goal, he admitted, is to send SCOTUS a case they can use to strike down Roe v. Wade, presumably so every woman in American can go to prison for getting an abortion. In that, he’s coordinating with groups whose larger agendas are not just to criminalize abortion and prevent women from having rights over their own bodies, but also to give polluters, vote suppressors, and predatory billionaire banksters free reign.

With the right-wingers previously on the Court, and the three who Trump added, America could start putting women in prison for getting abortions any day now. Several states have already passed such laws, and in Texas there’s even a bill before their legislature to sentence women who get an abortion to the death penalty. And they’re teeing up anti-voting-rights and pro-billionaire-polluter cases as you’re reading these words.

Meanwhile, the dark money group that put $10 million each into “capturing“ the nominations of Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett is throwing another pile of dark money at trying to disrupt the nominations of two highly qualified but progressive women to the Biden Justice Department.

“Eye-popping as that is, those millions are a tiny slice of the funding behind the overall dark-money operation,” writes Senator Sheldon White House for the Daily Beast. “A 2019 Washington Post investigation revealed Judicial Crisis Network is one of a web of front groups coordinated by Leonard Leo, the long-time executive vice president of the Federalist Society. The Post tracked more than $250 million in dark money flowing through Leo’s groups.”

Decades ago, the then-Catholic movement against abortion and birth control hijacked the name of the anti-death-penalty movement, “Right To Life.” But today’s version of that movement is anything but pro-life: they openly and aggressively fight against any effort to provide healthcare to America’s poorest children, to pregnant women, or to even provide a decent public education to all of America’s kids.

They work hand-in-hand with groups that want to increase pollution, crush unions, suppress voters, and otherwise enhance the wealth and power of the ruling class of America at the cost of average working people.

As Senator Sheldon Whitehouse writes for the Daily Beast: “The dark-money network has won an avalanche of victories for its donors. There are 80 partisan, 5-4 Supreme Court decisions that limit workers’ rights and access to reproductive health care, erode environmental protections, block commonsense gun safety laws, undermine civil rights, and protect corporations from courtrooms. It is an astounding 80-0 rout for big right-wing donors.”

This is really about power: the power of men over women and the power to destroy the planet to make billionaires richer and richer. It’s the same kind of power the Taliban has used to rule Afghanistan for decades: openly control women, seize the power of the State, and hoard as much wealth as possible in the coffers of those who support their rule.

From “Christian” policies against abortion and birth control to the fact that one in every three women in the world, according to the WHO, have experienced sexual violence at the hands of men, it’s all about power. We saw it play out last week in Georgia, with the anti-Asian, anti-woman hate-crime murders perpetrated there with the obscene rationalization of the “temptation” of men.

Wealthy and powerful men have run things for about as long as we’ve had written history. They want things their way, and have usually gotten what they wanted.

Ronald Reagan and George H.W. Bush were both big supporters of a woman’s right to abortion (Bush and Nixon even publicly supported Planned Parenthood) until the election of 1980, around the same time the white evangelical movement added misogyny to their racism (they were huge supporters of segregation), shifting from supporting to opposing abortion, at least for white women.

The GOP changed their stance that year to opposing women’s right, while Democrats generally continued to support a woman’s right to make her own decisions about her own body.

And now, anti-abortion laws, anti-birth control laws, and more broadly the rights and powers of American women, along with working people overall and people who simply want to vote are headed to the Supreme Court. This has created a crisis for our democracy.

Donald Trump bragged that President Obama “left me 128 judges to fill” as if Obama was just sloppy. 

The actual number was 105, but Obama didn’t “leave” them; he’d appointed genuinely qualified people, many women and minorities, to fill every single one of those judicial slots, and Mitch McConnell simply used the filibuster to block them in the Senate during the Obama presidency.

McConnell even blocked Obama’s appointment of a brilliant Black attorney, Myra Selby, to the Seventh Circuit Court just to keep the seat open for Amy Coney Barrett, a notorious right-winger and antiabortion zealot with no judicial experience. McConnell gave Barrett that stolen seat for her first job as a federal judge, and, when Ruth Bader Ginsberg died, he and Trump kicked her up onto the Supreme Court.

McConnell also blocked Obama’s appointment of Judge Merrick Garland to the Supreme Court nearly a year before the election, so right-wing hack and antiabortion and anti-birth-control partisan Neil Gorsuch could get the seat instead, as soon as Donald Trump was sworn in.

As a result, Trump and McConnell got over 200 Taliban-like federal judges and three Supreme Court Justices through the Senate, meaning nearly a third of all federal judges were packed into our court system by Trump and nearly all of them have been straight white men, every single one vetted by antiabortion, pro-corporate activist Leonard Leo.

This is court-packing on an unprecedented scale, and refusing to even hold hearings on Judge Garland was a naked violation of the Constitution itself.

So now abortion, birth control, voting rights, immigration, labor rights, a clean environment and pretty much everything else the GOP opposes are being teed up for the Court to “fix.”

Instead of waiting for this to happen, we need to “fix” the Court itself.

This wasn’t the first time the Supreme Court and much of the rest of the federal judiciary had become openly and nakedly partisan. 

And if the Biden administration and Democrats in Congress unpack our courts, it won’t be the first time the Article III branch has been reorganized to make it more representative of the majority of Americans.

In 1863, Abraham Lincoln wanted to get a solid vote on the Court against slavery, so he and his Republican colleagues who controlled the Senate and the House increased the number of Circuit Courts and, by extension, the number of Supreme Court justices all the way up to 10.

Two years later, when Lincoln was assassinated and slaveholder Andrew Johnson became president, Congress reduced the size of the Court to seven justices specifically to deny Johnson an opportunity to appoint anybody to the Court.

After Johnson left office, Republican President Ulysses Grant oversaw Congress increasing the size of the Supreme Court back up to nine.

During the Founding Generation, after he lost the brutal “Revolution of 1800” election, John Adams and his Federalists, during the lame duck session, passed the Judiciary Act of 1801 that dropped the number of justices on the Supreme Court from six to five to deny incoming President Thomas Jefferson an appointee.

President Jefferson and his victorious Democratic Republicans in Congress instead increased the size of the Supreme Court by two, from five up to seven justices, to rebalance the federal judiciary that Adams had packed with right-wing Federalists on his way out of office.

During times of national crisis, changing the composition of the Court by changing the number of justices has been done repeatedly. It’s nothing new, or even that unusual or controversial. Court packing and unpacking have a long and well-accepted history in America.

Mitch McConnell spent six years packing the federal courts with his American Taliban-friendly judges, and, as a result, the nation is calling out for rebalancing.

The federal bench overall must be expanded to deal with its current workload, and the Supreme Court should be expanded by at least four members so it will better reflect the American electorate and so it can deal with a broader spectrum of cases.

The Supreme Court and the federal bench must reflect America, and today it falls far short of that ideal.

To put it simply, it’s time for Democrats to unpack the federal judiciary and restore democracy and bring fairness, justice and the rights of women and working people to our justice system.

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