Lost Faith
I’ve lost faith in the Supreme Court. They used to be the final arbiter, who would do “what’s right” for the American people and the law. Sure, there were the “bad” decisions: Dred Scott, Plessy v Ferguson and Korematsu, for example. But the Court ultimately rectified them. And even when the Court split down party lines in Bush v Gore and determined who the President of the United States would be, it was easy to say that they had to make some call, or there would be no President at all.
But now there’s the actions of Justices Thomas and Alito, flaunting their immunity from codes of conduct and accepting millions of dollars in gifts. (It makes the behavior that caused Justice Abe Fortes to resign in the 1960’s; penny-ante.) And there’s the “deconstruction” of the administrative state by this Federalist Society majority, over-ruling the “Chevron” case this week. Their actions make it clear.
This Court has an ideological agenda, beyond and outside the law. It can be depended on to drive our Nation back to the “bad old” 1950’s in every way imaginable. (Or, perhaps worse, forward to the “2025 Project”). In the end, the “Robert’s Court” will bear the same stain as the “Taney Court” of the 1850’s; the one that took the wrong side before the Civil War. This Court (Justices Kagan, Jackson and Sotomayor excepted) is on the “losing side” of the arc of the American moral universe bending towards justice.
Perfidy
That doesn’t get into the absolute lies that Justices Barrett, Kavanaugh and Gorsuch told in their Senate hearings. They all pledged to pay respect to precedence, to the rule of “stare decis”. But, they clearly do not respect the past, unless “stare decis” only applies to laws passed prior to 1860. Look out Sherman Anti-Trust Act, they’re coming for you next!
And it doesn’t include the perfidy of Senator Mitch McConnell, who refused to allow President Obama’s legal nominee for the Court to have a hearing, then rammed through President Trump’s nominee in less than six weeks. Were McConnell’s legislative machinations “legal”? Unfortunately, they were. But they were not in keeping with the spirit of the Constitution, or the “norms” of American government and Senate.
Franklin Roosevelt had it right in the late 1930’s. The Court is stale, dominated by an ideologic legal theory that seeks to undo our modern world. And every Justice is appointed for life, with no Constitutional way to remove them or force retirement, short of death or behavior so egregious that two-thirds of the Senate would agree to convict on impeachment (something beyond possibility in our polarized age).
Reform
Federal Judges can take “senior status”, a form of working retirement, at sixty-five years of age with fifteen years of service. And in the next year, we will have four Justices of the Supreme Court reach seventy. They are appointed for life. They can’t be forced to quit.
But there is no Constitutionally assigned number of justices on the Court. Nine Justices is simply a “number”, set by statutory law. That number has been both fewer and greater in the past (the precedent). So, the simple answer is this: for every Justice seventy or older, the current President can appoint an additional Justice to the Court. The number of nine Justices is just a law, a law that can be changed. If President Biden could do this – there would be four new Justices on the Court next year, four Justices to balance the Federalist cabal that is now altering our Nation; four Justices to reassert the modern American view of citizenship and personal rights.
All it would take, is a majority of the House, a majority of the Senate (willing to break the filibuster rule), and the signature of the President. And for those who decry this idea as a “politicization” of the Court, that ship already sailed. It sailed when McConnell pulled his shenanigans, denying Garland a hearing, then rammed Barrett through. It’s time for Democrats to “ante up”, and get in the “Supreme Court” game. And it’s not a new idea – checkout the “Judicial Reform Act of 1937”. In 2025, we deserve a “New Judicial Deal”.
Just one more reason that the election of 2024 is so important.
