As expected, the Radical Supremes have decided to trash Roe vs Wade. Even Bret Stephens has no trouble acknowledging that the impending decision isn’t conservative; it’s radical.  He might have added:  reactionary. Reactionary in the classical dictionary sense of moving “ toward a former and usually outmoded political or social order or policy.” Since 2000, 31 countries have expanded abortion rights.  Only three—Nicaragua, Poland and the United States—have rolled them back. What great company we’re in!  The Supremes are fighting history, and not just US history.

I don’t like to repeat myself, and the truth is that I have little to say about the Supreme Court and abortion rights that I haven’t already said.  But the news today is so important—and, unsurprising as it is, so dismaying—that I can’t help repeating myself.  This post borrows freely from that earlier one.

The Supreme Court is a political institution.  It makes major, politically contentious policy decisions, and it makes them along partisan lines. But it is a political institution that is unmoored from anything that could be called democratic accountability. A president who was twice elected with popular vote majorities got to put two justices on the current Court, while a president who never won even a plurality of the popular vote was able to install three.  There is no better way to say it: that is just fucked up.

So, if the Supreme Court isn’t already in a crisis of legitimacy, it should be.   Progressives need to do all we can to promote that crisis, because a crisis of legitimacy can only be resolved through significant institutional change, and such change is absolutely necessary. The alternative is a Supreme Court dominated by the radical right for the next generation.  A Court that threatens not only abortion rights, but much of the agenda of any Democratic president and Congress.

Court reform needs to become a priority item for progressives. There are lots of different ideas for making the Court a more responsive institution, but they are anodyne unless they include an expansion of the membership of the Court. Republicans will call that Court packing. We can reply that they have already packed the Court; we simply seek a re-balancing. Timid souls will say “No, you can’t do that—the voters will not abide your politicizing the Court that way.”  I don’t think so. I think that people generally understand that the Court is already political. (Is there anybody left who actually believes that the Court operates in some unearthly realm of jurisprudential theory towering above the crass world of politics?) They won’t necessarily resist calls to make a political institution more politically representative.

While we’re at it, let’s dispose of another argument against Court re-balancing: “If the Democrats pack the Court, won’t the GOP just do it when they get the chance? And won’t the spiral just continue?”  Maybe, and maybe—we can’t be sure. But we can be sure that if we do nothing, the Court will remain a powerful bastion of reaction.

I don’t expect Biden or Pelosi to proclaim the necessity for Court re-balancing any time soon. There is no prospect for success this year or the next or the year after. But it’s a battle that must be fought and, eventually, won.