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Rising Discontent Says It’s Time to Reform the Supreme Court…

The Supreme Court is back in session facing a docket filled with controversial cases involving abortion, gun rights, and religion that are bound to stir anger no matter how decided. The court's new 6-to-3 configuration whereby Trump's three conservative appointments have overloaded the right end of the bench has made the court itself controversial, with a public that questions its legitimacy giving it an approval rating that has dropped to an unheard of 40% in a recent poll.

President Biden deflected the radical proposition of packing the court –adding four liberal justices to flip 6-to-3 to 6-to-7 — by

appointing a commission to examine the merits and legality of how the court might be reformed. The ideas debated revealed that there is a great deal more dissatisfaction with the court than its rightward tilt.

The Court's power has attracted the most debate. Because Congress has chosen deadlock over compromise and ceded much of its role to the executive branch, it has left the courts to decide cases that should have been made unnecessary by legislation. The upshot is that the court is thought to have gone well beyond "calling balls and strikes", as Chief Justice John Roberts memorably described his role in his confirmation hearing. Republicans have long complained of an activist Supreme Court guilty of legislating from the bench, but beginning with the court deciding the presidency in Bush v. Gore in 2000 followed by hotly disputed decisions such as Citizens United and the evisceration of the 1965 Voting Rights Act, it is now the Democrats who are leery of the court's activism.

A prevailing complaint is that the Court too readily confers on itself the right to strike down laws passed by Congress. The right of judicial review dates from 1803's Marbury v. Madison in which Chief Justice John Marshall declared that the Supreme Court's rightful role was to review whether legislation passed by Congress passed muster with the Constitution. That established the court's right of judicial review which, miraculously, has held fast for over two centuries. The court has no direct enforcement powers; it has no army and must rely on the lower courts and law enforcement to uphold its decisions. That requires the Supreme Court to work constantly to gain respect. In his book on the authority of the court, Justice Stephen Breyer cites Cicero, that the only way to ensure obedience to the Supreme Court's pronouncements is for its decisions to be just.

Instead, we have seen the court reverse the right of unions to collect dues from non-members which had been found constitutional in a 1977 decision, okay the transfer of congressionally allocated defense money to build Trump's wall, decided to let gerrymandering run amok, approved the ban of entry of people from Muslim countries (accepting a contrived workaround) which is against a law passed by Congress against discriminating against people by nationality. These examples are popular with a broad swath of Americans who care little for the rule of law, but for those conscious of the law and its preservation, its flouting by the court has bred distrust.

The public has questioned the court's legitimacy when they have seen it overturn laws with a polarized 5-to-4 vote, a margin of a single justice negating a legislative body of 535 members elected by the people. Biden's commission is pondering whether the Court's jurisdiction to hear constitutional challenges to certain types of laws ought to be taken away, or whether a super-majority should be required for such decisions (which, of course, might not do much good with the court now split 6-to-3), or whether Congress should be given the right to reject a court's invalidation of a statute, much as it can override a presidential veto.

The Supreme Court would likely strike down an attempt at so-called jurisdiction stripping, but the Constitution allows it. Article III hands jurisdiction to the court, but with "such Exceptions, and under such Regulations as the Congress shall make".

flood the zone

The addition of a sixth conservative in the person of Ms Barrett led to a flurry of opinions about packing the court to counteract the 6-3 rightward tilt, but the commission has paid little attention to that. The Constitution allows changing the court's size, which has fluctuated several times, from as few as five and as many as ten, although no change in size has been made since 1869. Biden's preference is to wait-and-see whether the court's decisions will in fact be arch-conservative before taking so drastic a step, if indeed the votes to do so could be found.

But there is another idea we'd propose that, if it has occurred to the commission, has not been reported. The Supreme Court is expected to hear from 100 to 150 appeals a year out of some 7,000 it is asked to review, but in recent years it has heard far fewer, averaging 77 between 2007 and 2018 and issuing opinions in only 67 during its 2020-2021 term. Aside from moving too slowly, the court is not big enough.

What if it were to adopt the appellate court model? The 13 circuit courts of appeal have close to 14 judges on average (the Ninth Circuit on the West Coast has 29). Panels of three judges, chosen at random, hear and decide almost all cases. If a dispute arises, the full court reviews a case — en banc is the term. In an adapted form, the Supreme Court might make, say, seven judges chosen at random from an expanded court be the standard size to hear each case, three being too few for the gravity of its final decisions, and en banc hearings straightaway for the biggest cases such as Mississippi's abortion law.

representation

Added to the Catholic asymmetry, there are democratic questions over the court's legitimacy, at least for those who ponder where democracy is headed. The body politic may have no hope anymore for appointees to the court to be even-minded centrists who judge on the merits of cases rather than advancing their ideology, but the citizenry at least would wish for a playing field not slanted downhill against the winning side. Yet, for the first time in history, a president who lost the popular vote got to choose a Supreme Court justice. Not just one, but three — Gorsuch, Kavanaugh, and Barrett. And further, they were confirmed by senators who were elected by fewer votes than the number of votes that elected senators who were against the nominees. Kevin McMahon of Trinity College tallied that the 54 senators who voted to approve Gorsuch, for example, were elected with 54 million votes, whereas senators who opposed Gorsuch had won 73 million votes, a decidedly lopsided minority-majority skew of who gets to call the shots. The same was true for the vote counts of senators for and against Kavanaugh, Barrett and even Thomas and Alito. It is not untoward for the public to ask "what's going on here?" and believe the fix is in.

And, of course, we witnessed Mitch McConnell sandbag Merrick Garland for almost an entire year on the grounds that a president should not get to choose a Supreme Court Justice in his final year in office, a rule found nowhere in the Constitution, and then ramming through Barrett just before an election that could, and did, prove to be a president's last year in office. It is reasonable to assume that the "Advice and Consent of the Senate" that the Constitution calls for is meant to be provided promptly, but McConnell complied neither promptly nor at all, so one wonders why the Democratic Party did not sue for this violation of the nation's founding document the moment it became apparent.

life tenure

Exasperated by justices hanging on into their 80s — unto their death for Antonin Scalia and Ruth Bader Ginsburg — perhaps long out of touch with society and its changes, the public readily backs term limits. There is an undemocratic element to life tenure because it preserves on the court justices chosen decades before by presidents of an ideological view that may be well out of synch with the public's aspirations of today. Yet another, at 83 years, is Justice Stephen Breyer, who hears calls to step down so Democrats can install a young replacement while they control the Senate, but says he will retire on his own terms and that the decision "has many complex parts to it", a complexity unapparent to all other than himself.

In a Reuters/Ipsos poll in April of this year, 63% were for a limit versus 22% against. Most often proposed is an 18-year limit with one justice rotated out every two years, thus given a president two choices during a four-year term. An added benefit: It would get rid of the ploy of presidents picking young justices for no reason other than to leave their imprint on the court for extra decades.

good luck

Of course none of the proposed changes will happen because nothing changes in America. As with so much else that leaves the country in stasis, agreement could never be reached, but it does make for interesting conversation.

1 Comment for “Rising Discontent Says It’s Time to Reform the Supreme Court…”

  1. Dr David Barnett

    From a strict constructionist perspective, Trump’s most recent SCOTUS appointees have been a great disappointment.

    Agreed that SCOTUS has carved out doctrines not at all authorised by the constitution (like extensive sovereign immunity, and police power). Arguably, judicial review in some form is within the common law tradition that the constitution implicitly assumes.

    However an arm of the Federal government reviewing the constitutionality of the actions of itself and other branches smacks of conflict of interest. SCOTUS’ historical undue tolerance of various blatant usurpations (eg. civil forfeiture) proves the point.

    Prior to 1860, the most important check on Federal overreach was state nullification and the threat of secession. That was how the 1832 crisis was resolved.

    Lincoln successfully fought a war to foreclose state oversight. Now SCOTUS is seen as the sole overseer of Federal constitutionality – and it has been dismally derelict. The proposed “reforms” would likely make the problem worse.

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