The need to reform the Supreme Court has generated wide public debate due to recognition of the obvious (and I must say, shocking) degree of corruption of the current Court majority, but among political scientists and law professors, the need to reform the Court has been a topic for years. When I was teaching Law and Public Policy, I participated–mostly as a “lurker”–for some twenty years in a “Law and Courts” listserv, where scholars of the justice system and the courts discussed problems that long preceded the current Court, and argued about the merits of various proposals to mend those problems.
One significant issue was the diminishing number of cases the Supreme Court was able to decide annually–an issue that led to suggestions for various ways to expand the Court’s capacity, including the addition of judges. Another problem was that Americans live a lot longer now than they did when the Court was established, reducing turnover and raising the likelihood that some Justices would “serve” while senile or otherwise diminished. The most popular “fix” for that issue was a proposal to set term limits–eighteen years was a common proposition because it would be long enough to meet the goal of the Founders to shelter justices from political pressure and popular passion (which was the purpose of lifetime appointments), but short enough to minimize concerns about aging and turnover.
These academic discussions went on long before the elevation of obvious ideologues and political partisans to the highest court, refuting the arguments we hear dismissing the reform movement as ideological “court packing.” The growing recognition of the inadequacies of the current Court are just one example of the structural and systemic problems that have gotten us to the disastrous present. When and if we emerge from our Trumpian nightmare, the goal cannot be to restore what was. Structural changes will be essential–very much including to the Supreme Court.
In a recent post, Josh Marshall of Talking Points Memo made that point.
It’s not just turning things back to the status quo ante, as we’ve discussed. We’re in an era in which it’s critical to make major structural changes when the opportunity arises and build new structures that are more durable than the ones which have fallen so quickly over the last decade and specifically the last year. So you need smart people putting time into this work during the next three years, really thinking it through and having that list of reforms ready, support built them, etc.
That recognition brings us to the reason that Court reform is so critical. As Marshall points out, thoughtful people can identify numerous needed reforms, from the filibuster to the Electoral College to gerrymandering…the list goes on. But if we are dealing with a corrupt Supreme Court, those reforms are likely to be struck down. This Court has demonstrated that it can just manufacture pseudo-constitutional arguments for getting to the majority’s desired results. As Marshall wrote, “It’s really as simple as that. We’re now locked into public policy which fits an aggressive version of right-wing pseudo-constitutionalism and, even more, a jurisprudence aimed at keeping federal policy in line with the electoral and political interests of the Republican Party.”
The point is that the corruption of the Supreme Court is actually beginning to slow, disincentivize, detour policy work. It could not be more critical that people across the Democratic world — policy, law, electoral politics — have this realization. There’s no reason to accept a situation in which democratic self-government is only allowed now for Republicans.
We the People are gradually coming to recognize that we can’t fix our broken government unless we first fix the Court. And–as Marshall also emphasizes–not only must something be done about it, something can be done about it. “This isn’t like amending the constitution. It can be done. Get a trifecta, kill the filibuster and you can do it all on simple majority votes.”
And it really does have to be done, and not only for the reasons Marshall notes. When a Court deviates so profoundly–and so obviously–from adherence to precedent and established legal reasoning and analysis, citizens lose respect for the very concept of the rule of law. When they see the highest court in the land enabling government corruption and Christian nationalism, their belief in constitutional governance understandably evaporates, and rather than identifying as an American polity, the population devolves into tribes and factions contending for power and influence.
Reforming the Court should top our “to do” list.
No argument about the points made above but the big question is, does the SCOTUS problem merely reflect another flaw in an already corrupt and ineffectual political infrastructure? As you noted, there are several other factors such as gerrymandering that prevent the government from working for We the People and, let’s not overlook the corrupting influence of money. The last few years have demonstrated just how weak our democratic guardrails are when corruption, incompetence, and evil elements are put in charge. Frankly, I can’t see how a few tweaks can fix a situation where our political leadership is telling us that 2+2=5 and even worse, half the people believe them. My optimism is nearly extinct. Hope I’m wrong.
Perfectly reasoned and stated. Courts first or nothing else can be fixed.
Also the McConnell axioms must be abolished – to wit;
Lame duck Presidents cannot appoint Justices.
All Democratic Presidents are lame ducks from day one.
No Republican Presidents are lame ducks, even on their last day in office.
I’m on the fence on ending the filibuster. What can be changed with a trifecta by one party can be reversed or nullified by a trifecta of the other party. I agree that we desperately need change. I’m just not certain of the best way to achieve that end.
Yes, McConnell’s garbage must be thrown out. Were it not for him, helped along , over the years by Boehner, and Ryan, we’d not have this sickening SCOTUS, nor Trump.
Social institutions need to evolve, shed those structures that hinder positive growth, or the society drowns in its own detritus.
“When a Court deviates so profoundly–and so obviously–from adherence to precedent and established legal reasoning and analysis, citizens lose respect for the very concept of the rule of law.”
The loss of respect for the very concept of the rule of law begins long before it reaches the Supreme Court. SCOTUS has been taking on cases to resolve due to political pressure and illegal acceptance of expensive beneficial gifts as payoffs. We need to get them out of our beds and out of making medical decisions based on religion rather than required medical training and degrees. They are free to think and believe as they choose but not make decisions and enact laws at the expense of citizens losing their civil and human rights.
Mike Pence and Indiana’s law base is a good example of starting at the point of origin of too many decisions forced on us by the Supreme Court decisions.
I am pleased to see others today saying what I have said repeatedly about the part that Mitch McConnell has played in the current problems in SCOTUS. And to him, he was playing political games with our lives using his own set of rules.
Excellent forward-looking blog today. We need to develop a positive policy agenda for what to do to fix things once the current DC corruption has lost its tiny majority.
THINGS THAT NEED TO BE CHANGED IN THE CONSTITUTION
THE JUDICIAL BRANCH
ALL SUGGESTIONS HERE ARE PREDICATED ON MAINTAINING THE LEGACY NUMBER OF JUDICIAL CIRCUITS., WHICH MAY BE INCREAED OR DECREASED IF WARRANTED, BUT SHOULD ALWAYS REMAIN AN ODD NUMBER. IN CASE OF RECUSALS, THE REMAINING JUSTICES SHOULD VOTE ON ONE OTHER MEMBER TO BE INVOLUNTARILY RECUSED TOO.
MY SUGGESTIONS:
• The Supreme Court is divided into two functions: the Case Law Court adjudicates claims and the Constitutional Court examines all proposed federal legislation for Constitutional compliance and suggests revisions before any bill can become law.
• Congress creates and strictly monitors compliance to a strict code of ethical conduct for all government officials (including Congress itself, as well as the executive branch).
• The Presidential power of judicial appointment is removed. By rank-order vote, each year one Circuit’s Bar Association elevates one of its own members to the Case Law Court and another to the Constitutional Court, for 13-year terms each.
• The districts’ two Supreme Court elections will be staggered from each other by six months.
• The most senior Justice of each Court will serve as the Chief Justice for his or her final year on the Court, then retire from public service. That same Circuit inaugurates a new freshman Justice. The composition of both the Case Law Court and the Constitutional Court will thus be completely refreshed over a 13-year period, one member per year in each Court.
• Justices may be impeached for malfeasance, misfeasance, or corruption by rank-order vote of that Circuit’s own Bar Association. If convicted, the accused Justice will be removed from office immediately and a special rank-ordered election will be held tp elevate a substitute to serve the remainder of the expelled Justice’s term.
• No former Justice may become a paid lobbyist to Congress.
THE POINT OF MY PROPOSAL IS TO ACHIEVE CONSTANT CHURN, BUT I DON’T HAVE A VIABLE SUGGESTION FOR FAIRLY RESETTING THE CYCLE AFTER THE 13TH YEAR.
ANY OTHER THOUGHTS ON CONSTITUTIONAL REFORM?
One of your most important posts, I think. Thank you.
I’ve said it before, and I’ll surely say it again: the very first thing that must be done is “reform” the filibuster. It’s current bastardised form is killing your democracy, and no other reform is possible until it is fixed, where “fixed” means returned to its standing/talking roots, or otherwise abolished. For any Dem who is against filibuster reform: that person must (1) be primaried, and (2) not allowed any leadership position.
So far, Schumer has only been in favour of carve-outs for the filibuster–for voting rights and (potentially) abortion–and that’s not good enough.
AMEN…..this HAS to be the first order of business when sanity regains control in this country!!