The opinion of this writer is not the opinion of the Ridgeview News. However, on Memorial Day Weekend I am reminded that our United States Soldiers died for the freedom of all Americans to say what it is that they believe.
”The cure for democracy is more democracy.” Jane Addams, feminist activist (1860-1935)
Our current Supreme Court has a majority of partisan hacks just doing the Republican party’s business, but court reform is not necessary because we need a one-time fix, but because this awful retrograde court shows us how our democratic structures are letting us down and how we can improve.
For decades, the US Supreme Court enjoyed the trust and confidence of a majority of Americans. In 2000, 62% approved of the way the Court was doing its job. But by 2020, 58% disapproved. In 2023, asked about confidence in the Court, 72% said – some, very little, or none.
A majority of citizens disagree with most of the Court’s rulings on abortion, gun laws, voting rights, affirmative action, labor laws, environmental laws, financial regulation, and public bigotry masked as religion.
This conservative Court’s rulings are more partisan than legal, and the invention of doctrines does not make them legal, even if the highest court in the land invents them. Combined with ignoring stare decisis (disrespecting prior holdings of the court), while respecting their partisan leader, Donald Trump, and working to save him from the rule of law, the current Supreme Court’s rulings deserve the lack of respect Americans now show.
The right-wing Republicans, who have not been able achieve their highly unpopular goals by legislation, now use the Court to enact them by fiat. The current court has been “packed” with justices chosen by right-wing dark money groups and then installed thanks to Mitch McConnell stealing a seat from President Obama (Gorsuch) and then another from Joe Biden (Barrett). Trump’s three nominations, by a president who lost the popular vote, created the Court’s current lurch to the right.
The US Supreme Court is not now structured as a democratic institution in the small “d” sense of representing the people. Justices are nominated by presidents elected by the notoriously undemocratic Electoral College and confirmed by the Senate with its notoriously unrepresentative allocation of senators. Alito, Thomas, Gorsuch, Kavanaugh, and Barrett were each confirmed by senators who represent a smaller share of the country than the senators who voted against them.
Can the Supreme Court be made more democratic? Simple answer – yes – the Supreme Court can be reformed. The Constitution says only that there shall be “one supreme court.” Justices shall hold their offices “during good behaviour.” Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it.
Possibly seeing the writing on the wall, pugnacious Justice Alito recently struck back at this idea: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” It’s worth noting that no provision in the Constitution gives the Court the power to strike down acts of Congress – it’s a rule the Court made up. So we shall see.
One problem with Supreme Court reform, maybe the largest one, is public perception of the court as somehow above criticism, untouchable, and immune to change. The Court acts like a monarch, granting rights here and taking them away there and too many people shrug. Protests are minimal, short-lived, and ineffective.
The Court dresses like religious clergy. Imagine them instead in business suits, without backdrop velvet drapes, sitting in a glass-walled conference room, their oral arguments broadcast by TV and internet. Take away the mystery and see that the Court is just one more political institution, one with law as its subject.
When we speak of court reform, the first thought many have is “court packing” – what FDR threatened to do when the Supreme Court steadily blocked the New Deal legislation Roosevelt and the Democrats passed to rescue the country from the Great Depression.
At a time when the average man lived to 58, FDR proposed to add a new justice to the court every time a justice reached 70 butwouldn’t retire. The court packing plan was controversial at the time and never voted on by Congress, but through shifts of justices’ opinions and attrition, Roosevelt ultimately had a court that upheld the New Deal legislation.
“Court packing,” as the idea of simply adding more judges until you have a majority favorable to your political views (as McConnell did recently) is still tainted and a majority of the public does not support it, perhaps for the obvious problem that what you do can be done back to you.
There is, however, current proposed legislation in the Senate and House: the Supreme Court Tenure Establishment and Retirement Modernization or TERM Act. Justices would serve 18-year terms, after which they would assume senior status and could serve as judges on lower courts if they chose. (The US is the only major democracy in the world where justices have lifetime terms.)
The Act creates regular appointments in the 1st and 3rd years following a presidential election. Each president would appoint two new justices. The current justices would retire from active service in order of seniority (currently, Thomas, Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson) as each new regularly appointed justice joins the Court.
Term limits would lower the temperature on the currently contentious nomination process and pressure campaigns for justices to retire when a certain political party is in power. Eighteen-year terms would be long enough to ensure judicial independence.
In light of the incredibly partisan, political, and undemocratic Supreme Court that we have now, we need to consider Court reform before we lose the rest of our civil rights, protections forracial, religious and gender minorities, and the power of our individual votes to make a difference.
Vote Biden/Harris, give them a Democratic Senate and House, and let’s institute more democracy. In this election, democracy hangs in the balance.
So, the Rare Old Bird has its feathers ruffled because of the conservative bent of the Supreme Court of the United States. Because the majority on the Court work to interpret the Constitution and uphold the laws set forth in this venerable document, instead of ruling with emotion and Leftist whims of the day, we suddenly need to change SCOTUS by an act of Congress? I think not.
Since 1869, SCOTUS has had nine justices, but previously the numbers varied from six to ten, due to political maneuvers designed to benefit political parties and their actors. Anytime there is squawking about tweaking SCOTUS, Americans need to realize it is being done just so a political party can have everything it dreams of –unfettered power. Democrat and Republican alike.
In the “Rare Old Bird” article, it is lamented that Democrats cannot move ahead with their “progressive” agenda since SCOTUS stands in the way. When the situation is reversed and conservative agendas are hindered due to a more Left-leaning Court, then Republicans have their turn in being disappointed. That is just how it works. It has been working since 1869.
As for Mitch McConnell overriding Obama and Biden by appointing Gorsuch and Barrett, he had the power to withhold the SCOTUS nominations until after the next election and he did. A Democrat Majority Leader of the Senate would have done the exact same thing if the situation had been reversed. Let’s not pretend otherwise. I know Democrats believe that they are firmly rooted on the moral high ground, but since they also find the truth to be irrelevant, and, in fact, believe there are many truths, I firmly believe their truth would have dictated that they suspend nominations until after the election.
Concerning the Electoral College “undemocratically” electing our presidents, all I can say is thank God for the wisdom of our Founding Fathers. Without the Electoral College, all a presidential candidate would have to do would be win the vote in the large cities. The Electoral College ensures that a Presidential candidate’s goal is to win the popular vote in EVERY state, rural and urban alike. That is far more representative of the people than the popular vote that we might see in a true Democracy, where majority rules. Remember, we are a Constitutional Republic, not a Democracy (even though many Democrats, Biden for example, throw the words Democracy and democracy around rather loosely and sometimes interchangeably). There is a saying attributed to several famous people (Ben Franklin and Winston Churchill to name a few) that goes like this: “A Democracy is two wolves and a lamb deciding what will be eaten at dinner.”
Leave SCOTUS alone and hope you’re not the lamb.
Kandi Davis Pingley
Sand Ridge