Tag Archives: Supreme Court

The Supreme Importance Of Reforming The Supreme Court

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.

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The Tariff Decision

The Supreme Court’s decision striking down Trump’s illegal tariffs was welcome, but hardly unexpected–and as Josh Marshall has reminded us at Talking Points Memo, hardly a sign that the Court has changed its corrupt ways.

For one thing, the tariffs were so transparently illegal it would have been incredibly difficult to save them (although three of the Court’s most incorrigible members tried.) As Marshall noted, there simply was no ambiguity in the law in question. He is absolutely correct when he says the decision wasn’t some big win. Granted, it’s certainly better to prevent a rogue president from continuing immensely harmful and blatantly illegal acts than permitting him to continue them. But it would be a mistake to view this decision as evidence that the Court is abandoning its substitution of political preferences for legal analyses.

This is a case where the legal merits of the President’s action were just too transparently bogus even for this Court to manage and — critically — his actions and the theories undergirding his claims to the power were, for the Corrupt majority, inconvenient. The architect of the current Court — the Federalist Society’s Leonard Leo — was behind the litigation that undid the tariffs. That tells you all you need to know. In this case Trump’s claim to power was neither in the interests of the Republican Party — the Court’s chief jurisprudential interest — nor any of their anti-constitutional doctrines. So of course they tossed it out. This may sound ungenerous. It’s simple reality.

Actually–as Marshall also points out– the decision can be viewed as an indictment of the Court, which delayed issuing its decision for almost a year, and allowed the tariffs to upend whole sectors of the U.S. and global economies during that time. The Court allowed this president to exercise clearly illegal powers for almost a year, and it’s hard to disagree when Marshall says that “If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, then there is no Constitution.”

Part of the delay of this ruling is the fact that most major corporations were afraid to bring litigation because they didn’t want to go to war with the president. But that’s also an indictment of the Supreme Court’s corruption. Because they made clear early on that there was little, if any, limit they would impose on Trump’s criminality or use of government power to impose retribution on constitutionally protected speech or litigation. So that’s on the Court too. But it’s only part of the equation. The Court also allowed the tariffs to remain in place while the government appealed the appellate decision striking down the tariffs back in August. Let me repeat that: back in August, almost six months ago.

In other words, most of the time in which these illegal tariffs were in effect was because of that needless stay. The logic of the stay was that deference to President’s claim of illegal powers was more important than the harm created by hundreds of billions in unconstitutional taxes being imposed on American citizens. It’s a good example of what law professor Leah Litman — one of the most important voices on the Court’s corruption — earlier this morning called the Court’s corruption via “passivity,” empowering anti-constitutional actions through deciding not to act at all or encouraging endless delays it could easily put a stop to in the interests of the constitutional order.

The word “corruption” is harsh, but deserved.

Consider the Court’s increasing and unprecedented use of the so-called “Shadow Docket” to issue orders untethered to analysis. And that corruption hasn’t only been in service of the Justice’s political ideology. Investigations have uncovered copious evidence that both Alito and Thomas have accepted numerous, undisclosed luxury trips and gifts from billionaire donors with interests in pending court cases. ProPublica has reported on the numerous  gifts Thomas has accepted from Harlan Crow, and on the trips Paul Singer gifted Alito. 

The Separation of Powers prescribed by America’s Constitution requires three branches of government acting with integrity to preserve their separate prerogatives. The crisis we currently face is, in very large part, a result of a corrupt Supreme Court and a Congressional majority composed of cowards and eunuchs, branches that have ceded their constitutional authority to a bloated, lawless and increasingly lunatic executive.

When We the People retrieve our government from the MAGA fascists and neo-Nazis, reform of the Supreme Court should be one of the first orders of business.

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Fixing The Court

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.

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Legal Nostalgia

A former student recently needed a copy of the syllabus I’d used in her graduate Law and Policy class back in 2010. When I reviewed it, I was struck by the changes effected by Trump, MAGA, and our current, corrupt Supreme Court majority. I became positively nostalgic for the legal environment of my time in the classrooom–nostalgic for the “black-letter law” and for precedents that were considered settled by my cohort of lawyers and law professors.

In that syllabus, I explained the course as follows:

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This course will examine the response of the American legal system, with its historic commitment to individual liberty and autonomy, to the growth of the administrative state and to an increasingly complex social environment characterized by pluralism and professional differentiation. We will discuss conflicting visions of American government and different approaches to public administration, and consider how those differences have affected the formation and implementation of public policy within our constitutional framework. Throughout, we will consider the constitutional and ethical responsibilities of public service—the origins of those responsibilities and their contemporary application.

While relatively few people will become public officials or public managers, all Americans are citizens, and most citizens will participate in the selection of public officials and will take positions on the policy issues of the day. Accordingly, this course is intended to introduce all students to the constituent documents that constrain public action and frame policy choices in the American system. These explorations will inevitably implicate political (although not necessarily partisan) beliefs about the proper role of the state, the health of civil society, and the operation of the market. To the extent possible, these theoretical and philosophical beliefs will be made explicit and their consequences for policy and public sector behavior examined. The goal is to help students understand why certain policy prescriptions and/or public actions attract or repel certain constituencies, and to recognize the ways in which these deeply held normative differences impact our ability to forge consensus around issues of public concern.

In the course of these inquiries, we will consider the implications of the accelerating pace of social change on issues of governance: globalization, especially as it affects considerations of legal jurisdiction; the increasing interdependence of nations, states, and local governmental units; the blurring of boundaries between government, for-profit and nonprofit organizations, and the effect of that blurring upon constitutional accountability; the role of technology; and the various challenges to law and public management posed by change and diversity, including the  impact and importance of competing value structures to the formation of law and policy.

By the end of the semester, students should be able to recognize legal and constitutional constraints on public service and policy formation, and to identify areas where public policy or administration crosses permissible boundaries. They should be able to recognize and articulate the impact of law and legal premises on culture and value formation, and to understand and describe the complex interrelation that results.

_________

During my years on the faculty teaching law and policy, it never occurred to me that I would live in an America where a President and virtually everyone in his administration would find the foregoing paragraphs incomprehensible–where individuals in positions of authority would reject–indeed, be unfamiliar with– the very concept of Constitutional restraints, let alone the existence and importance of civil society and/or competing arguments about the proper role of government.

I certainly wouldn’t have anticipated that so many of the ambitious politicians serving in the House and Senate–men and women presumably concerned for the national interest– would neuter themselves in slavish submission to a man whose ignorance of government and policy and whose intellectual and moral deficits were impossible to ignore even before the emergence of unmistakable dementia.

I would have rejected as fanciful the notion that a duly constituted United States Supreme Court would substitute partisan ideology and Christian nationalism for the rule of law, upending years of settled precedents and thoughtful, considered jurisprudence, not to mention the Separation of Powers that lies at the very heart of our constitutional architecture.

And yet here we are.

Forgive this somewhat whiney post, but coming across my old syllabus has made me nostalgic for the legal world I once inhabited. It wasn’t perfect, but it was infinitely preferable to our current reality, and we need to recover, reinstate, and improve it.

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Ignoring The Obvious

America’s “legacy media” continues to downplay–or ignore–two of the most obvious sources of our current democratic crisis: Trump’s manifest mental disorders, and the undeniable corruption of the Supreme Court’s current majority. Our “papers of record”–the New York Times and the Washington Post–continue to normalize behaviors that are decidedly abnormal; they are aided and abetted by network news reports that carefully avoid even the implication that Trump’s behavior is “unusual” or that the Supreme Court’s majority is laying waste to its own jurisprudence.

There are, of course, independent newsletters and Internet sites that point to these realities, but those information sources are largely singing to the choir–Americans have long since sorted ourselves into audiences for “information” that panders to our preferred worldviews. As a result, MAGA folks are highly unlikely to have encountered the multiple psychiatric evaluations of Donald Trump–and equally unlikely to understand the radical extremism of the high Court’s majority.

One of my cousins is a cardiologist with a longstanding interest in psychiatry. He recently shared with me a column he’d written for his local newspapers, in which he reported on published psychiatric diagnoses of our demented President. I was especially interested in one published warning titled “Donald Trump, Like Hitler, is a Psychopath.”

Dodes warns that “this constitutes the most dangerous of all mental disorders, since it is the only psychological condition in which behaving in a morally reprehensible way is an essential part of its nature.” Manifestations of this disorder include the intentional creation of harm to others without guilt or remorse, for personal gain or self-gratification, which includes the sadistic pleasure of wreaking revenge against imagined enemies. Psychopaths cannot be reasoned out of their beliefs or their behavior, because they are unable to comprehend that others have value, or the concept of questioning themselves. The fact that Donald Trump has the most dangerous form of this disorder has two long-term consequences: It means that he is never going to stop intentionally harming others for his personal benefit, and it means that he will become worse over time. 

Basically, the psychiatric community has concluded that “Trump lacks the ability to listen to reason and draw conclusions from facts.” (As a frame of reference, the average score for psychopathy for someone in the general population is 5; the average for felons in a maximum-security prison is 22. Experts give Trump an average score of 34.) Add to that the fact that Trump is manifesting numerous, unmistakable and increasing signs of dementia, and the danger becomes too obvious to ignore–unless, of course, you are a member of the traditional news media.

If we had a properly functioning Supreme Court, Trump’s ability to destroy our government might be slowed. But we don’t have such a Court, a fact that Josh Marshall–the eminently moderate and reasonable editor of Talking Points Memo–recently addressed in a column titled “There is no Democratic Future without Supreme Court Reform.”

Marshall noted that–in the absence of Court reform– even a Democratic trifecta taking control and passing laws supportive of democracy, separation of powers and the rule of law wouldn’t be sufficient to solve the underlying problem, which is that a substantial minority of Americans really do favor autocracy. (What he didn’t say–and I will–is that what they favor is a White Christian autocracy.)

Any repairs would be at risk the moment Republicans were once again in control.

The simple truth is that none of the laws that are essential for reinforcing the federal system against Trumpist attack would survive the scrutiny of the current Republican court majority as soon as there is another Republican president. Most would be overruled much sooner because they would, like an anti-gerrymandering law, place limits on Republican states. You cannot consider the last three to four years and doubt any of this. And what follows from that is that no plan to recover from or even seriously battle with Trumpism can have any chance of success unless reforming the Supreme Court is the first order of business. The dire corruption of the Republican majority governs everything.

I agree. But the people who really need to understand what the mental health experts and constitutional scholars are telling us are unlikely to encounter discussion of these issues unless traditional mass media sources address them. The consolidation of media ownership by America’s plutocrats makes it very unlikely that we will see those sources engage in the journalism we need–a journalism that reports the obvious.

Talk about your perfect storm….

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