If there is one word that has been over-used ever since Donald Trump emerged from whatever fetid swamp he previously inhabited, it’s “normalization.” As the administration ignores the rule of law, breaches longstanding norms, and otherwise engages in decidedly abnormal behaviors, the legacy media and national businesses and institutions have largely gone along–metaphorically shrugging their shoulders while murmuring their objections.
That normalizing isn’t new. For years, those same institutions (and to be fair, the majority of the American public) have ignored the increasingly erratic operation of many of America’s governing structures–the misuse of the filibuster, the anti-democratic effects of the Electoral College, the blatant gerrymandering, and the problematic functioning of the Supreme Court.
The Court’s current, blatantly corrupt majority has focused public attention on its erratic and partisan rulings. But for years–well before the more recent decisions that have damaged the Supreme Court’s legitimacy, scholars who study the judicial system had been sounding alarms. Most of those concerns were focused on practices that had resulted in the Supreme Court accepting review of fewer cases each year, and the fact that Justices were living much longer these days–raising the probability of judicial senility. Well before Trump, scholars were calling for various reforms, especially the imposition of term limits (most favored eighteen years–long enough to accomplish the Founders’ goal of shielding Justices from popular passions.)
The subject of Court reform has taken on new urgency, for obvious reasons, and a number of possible “fixes” await a federal Democratic trifecta. One of the most intriguing was offered by Robert Hubbell, a lawyer whose Substack I read daily. Hubbell cites a book reviewed by The Guardian, in which legal scholars argue that the Court has “so delegitimized itself that nothing short of truly radical reform will save democracy.”
As Hubbell writes,
If we do not act boldly and quickly when we next have the chance, the damage Trump has inflicted on the DOJ and the Supreme Court may last a generation. Expand the number of justices to the point that the reactionary majority is impotent, and then begin a three-year plan to reverse every lawless, racist, anti-democratic decision issued by the Roberts Court.
Expansion of the Court, while controversial, is a common recommendation. What isn’t common is another proposal, which I found both fascinating and persuasive-“to split the Supreme Court into two divisions—one that hears cases within the “original jurisdiction” of the Court, and one that hears cases in the appellate jurisdiction of the Court.” That would allow “the assignment of “senior” justices to cases that are almost never presented to the Court—”so-called cases of original jurisdiction involving (e.g.) disputes between princes and ambassadors.”
Hubbell quotes an article from Daily Kos describing the plan:
We will need Congress to pass a new law that pushes the older justices aside and ties them up handling cases that don’t mean much to the American people.
The new law would say, “Justices of the Supreme Court who have served for 15 years or more shall be assigned to Division A of the court.
Division A will hear all cases affecting ambassadors, other public ministers and consuls;—all cases of admiralty and maritime jurisdiction . . . (These are cases that the existing Supreme Court now hears with “original jurisdiction.” It means the Supreme Court handles these cases from beginning to end with no trials in the lower courts.)
The statute should go on to say, “Division B shall be made up of justices who have served less than 15 years on the Supreme Court. After the year 2028, the president may appoint additional justices to this body . . . .
Survey research confirms that public opinion of the Court is at historic lows. A majority of Americans–and a significant majority of the legal profession– see the current Court as an overtly politicised body with significant ethics issues. Its unprecedented use of the “shadow docket” has unsettled both litigants and judges on the lower courts. And there is widespread disapproval of this Court’s consistent disregard for precedent and its dangerous undermining of Separation of Powers in order to empower our would-be king.
As the Editorial Board of the New York Times recently wrote, the lower courts “have responded heroically to Mr. Trump’s ill-founded efforts to centralize power and weaken democracy.” District and appellate courts have blocked Trump policies hundreds of times this year. “In many of those instances, however, the Supreme Court later overruled the lower courts, allowing Mr. Trump’s power grabs. It did so almost entirely on its emergency docket..”
Normalizing this rogue Court–failing to check its excesses–would neuter the Constitution and jettison the rule of law. We can argue about the details, but reform is essential.
No kidding. As I’ve mentioned several times in the past, those corrupt 6 are all Republican/Federalist Society appointees with the agenda of destroying democracy for the sake of the oligarchs. And here we are. Reagan, both Bushes and Trump are the chief culprits for these appointments – including the late Antonin Scalia of Citizens United fame. None of those presidents were/are very bright and were told who to pick by the same sort of folks like Louis Powell and the bastards responsible for Project 2025.
BUT to fix all that and employ one or more of the above suggestions requires a super-majority House and Senate that are NOT compromised by lobbyist money or some other self-serving agenda. Good luck with that when 1/3 of the eligible electorate isn’t even registered to vote.
I agree with SCOTUS needing serious reforms, but so do Congress and the Executive branches. While we’re working on the three branches of government, we also need to expand “NPR” to include government coverage at the local, state, and national levels. We must have a media that serves the people.
Due to oligarchic capture, all four branches are voided, neutered, and worthless. All we see are performative actions – the appearance of separate powers. Many people are calling for this government to be thrown out to make vital 21st-century changes. I don’t know how to accomplish that, but I am sure AI has some opinions.
The billionaire Silicon Valley broligarchy wants our government to be like a corporation headed by a CEO. They were hoping Trump would use his powers to accomplish this, but he and his clown posse are mostly clueless. I hope everybody has caught the irony of Bondi charging Brennan for lying to Congress under oath when she lied to Congress under oath. None of them has a stitch of self-awareness.
Very well presented, and I wholeheartedly agree with the suggested improvements to SCOTUS. While this is a noble suggestion reflecting the need for change based on terrible decisions over the years, beginning with perhaps the worst, Dred Scott, the truly heinous and out-of-step decisions are few and far between compared to the total (although the Roberts court has enough under its belt to engender the reforms listed). I think that other reforms are higher on the list than SCOTUS, i.e., the elimination of The Electoral College (making the election of POTUS to be determined by popular vote) and gerrymandering, reform of our lobbying laws, and enactment/reenactment of our voting rights laws (making it easier to vote). THEN work on SCOTUS reform.
There’s a substantial omission in virtually all of the blogs, comments to blogs, media articles and opinion pieces about Trump’s political wins.
The same bias doesn’t show in AI generated answers on the topic, “The Federalist Society and Catholicism have a strong intertwined connection…the synergy helped shape conservative legal thought and judicial appointments.”
The first Trump administration had more than 20 lawyers from the Jones Day law firm. A singular report from media cited the ties between J-D and Notre Dame. A key player in Trump’s judicial appointments was Don McGahn, a Catholic, Federalist Society member and former Jones Day lawyer.
As long as the truth about the religious/politicized sect is too difficult to voice, American democracy will be under threat. Jefferson’s warning, in every age, in every country, the priest aligns with the despot.
The false impression that politicized American Catholicism isn’t regressive and oppressive can be attributed to (1) the steady diet of puff pieces delivered to the public about outlier Popes Francis and Leo (2) the Scopes monkey trials (1925), when Catholic scholars’ embraced scientific answers separating them from the viewpoint of fundamentalist Christians (3) the past Democratic voting of lower economic status, immigrant Catholics, for example, Italians during FDR’s tenure (4) the performative religious symbols on display by high visibility liberal politicians like Pres. Biden and Rep. Pelosi.
JFK declared his allegiance to the USA as President was paramount and exclusive to adherence to religious sect.
A change to prevent the type of religious zealots, steeped in authoritarianism, who are currently the SCOTUS majority, requires making the allegiance hierarchy to the USA a requirement for selection.
‘’ In Europe, Christian democratic parties are the main conservative force in several countries… Most Western European (democracies) are ‘post-Christian countries’ ”
L.L., so your inputs today confirm my science eye’s basic observation: Religion keeps coming to the rescue of sanity. It also keeps coming to the rescue of any governing philosophy that isn’t tribal preservative in its nature.
Glory be to God, right?
Agreed with one minor point. Three years is too long. Pave the way for an overloaded court and reverse all of the Supreme’s precedent-reversing decisions ASAP, maybe starting with reading every word of the Second Amendment, not just the NRA’s abridged version. Also toss in recognize that corporations are mythical, legal constructs, not people and that more money does not equate with more speech, but rather with more volume of a particular point of view. The cases have to be prepared now.
Now if the winning coalition only has the spine and doesn’t, like Democrats have historically done, say “We have a partisan ‘conservative’ court, let’s balance that by appointing ‘moderates’ – ‘liberal’ jurists need not apply.” I worry that newly elected Democrats will fear offending anti-Trump Republicans who wish to replace Trump’s Chinese-style economics with real laissez-faire economics and blind faith in the invisible hand (invisible because it doesn’t exist).
And as Todd points out, the other two branches need to become less beholding to the Tech-billionaires,as does the media.
to have a life time appointment on any political part,judicial or otherwise, we have become a non-chnage nation. except where you fill the court,s with bastards that align against the people who built this nation. sure thats political, like what we have now. we see in the day light,what the rich has demanded. all the way down to the simpler suckers who chat the change. the magats are in the same boat. im waiting to see them crushed by what they gave us. but now their armed,and that would mean a military response.
im talking with these blights of humanity. seems they are a no fear bunch, this admin will save me.either they are gonna become ice members or self proclaimed street monitors.
funny how 10% of this nations who rank $40 million or more demanded we the woking class and small buisness take trumps hit. while they merrily go about getting richers. 10%, i figure they should be proping up our needs. after all the system was designed to take what we tried to make and keep,but stuffed it into thier pockets. we didnt see squat during the shutdown. now warner bros has a big push for this food banks .mmmm seems right in line with being bought up by the same assholes who,well you fill in the blanks..
I’m praying that Pope Leo doesn’t meet the same fate that Paul VI did. His appointments have been decidedly liberal, but he needs time to effectively move the Church into the 20th century, much less the 21st.
That said, it’s not necessarily the church that we need to worry about. Alito reached back to the pre-enlightenment days to create a rationale for the Dobbs decision. The Constitution that the so-called “originalists” worry about, was ignored. I realize that Amendment IX generally isn’t on anyone’s list of great amendments, but it is there and should have had some impact.
Two things. First, a Democratic House should immediately impeach Thomas and Alito for bribery. Put Senate Republicans in the role of having to defend bribery. Second, pass the following laws: One: Overturning any precedent more than 50 years old needs 2/3 of SCOTUS and can be overridden by Congress.Two: SCOTUS does not have the authority to take away a right once granted to a class of individuals that doesn’t correspondingly take a right away from others (e.g., gay marriage, abortion) without a unanimous vote. We also need to address the shadow docket but that’s a thought for another day.
I believe that three more years of corruption and incompetence is more than any society can bear, but it will be borne by the most sensitive of our cohorts, we the people. We will be anxious for reform (but I hope not too nervous), and the problem will be addressed by whatever political structures exist in those troubled times.
We must hope now that we will rise to the occasion of our failure as gracefully as we have in earlier times.
As US morphs along in time it seems most Americans want to go toward what’s fair and just. Standing up to oppressive, authoritarian ways in solidarity is at least slowing down project 2025’s ways currently. Correcting coarse is/will be a monumental undertaking that requires Americans who appreciate our inherent rights.
I am late to this party, but this is one that gets my goat. I will be brief.
The problems with expanding the court is the problem with us neutering the amendment process. The Supreme Court has been swapped for the amendment process.
Expanding the court? Have we not seen the problems this has caused for the Senate? All we will get is giving the donors and the Federalist Society more targets for their goals.
Impeaching Alito and Thomas is a good start.
Anything statutory is open to judicial nullification.
Term limits are a good idea. The creation of an A and B Court is an interesting idea. Congress can determine the Court’s jurisdiction, that should fly.
We have a lot of work to do.