Thursday, April 5, 2012

Has the Supreme Court Outlived Its Usefulness? It May Be Time for Reform

It may be time to rethink this storied (or crusty, depending on your
perspective) institution's place in U.S. democratic system.

I will be the first to admit that, for partisan reasons, I have been highly skeptical of the United States Supreme Court ever since it handed George W. Bush the Presidency in Bush v. Gore. I am not alone in thinking that the Supreme Court decided the outcome of the case on partisan grounds, in a 5-4 partisan vote (with the 5 conservative justices voting to give the victory to Bush and the 4 liberal justices dissenting), rather than by a process of thoughtful jurisprudence. I think Justice Scalia demonstrated the brazen partisan nature of the ruling when he stated:
It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether "[c]ounting every legally cast vote ca[n] constitute irreparable harm." One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast vote[s]." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
 This statement is remarkable on several levels:
  • It means that this decision can never be cited as precedent; the Supreme Court itself admitted that this was a one-off decision.
  • The Court didn't base its decision on the merits of the case, but rather on the majority's intuition as to who would win.
  • The Court admitted that they might be throwing out a bunch of legally cast votes (they simply didn't know and didn't investigate the matter further).
  • In spite of all these unknowns, the conservative justices gave the Presidency to Bush, because they could and because they thought he should/would win.
My favorite sentence from the above quote: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush" - well, yes, Justice Scalia, it would, since establishing the votes as legally cast might prove that Bush lost the election, which would cause Bush harm - but isn't that the point of counting votes, to find out who won?

But, most of that is water under the bridge now - Bush was President and is no longer, and even though he might have done irreparable harm to the U.S. (I think it will be a while before we know for sure), we've all moved on and tried to adjust to our current circumstances.

However, my skepticism of the usefulness of the Supreme Court in its current form has only continued to grow in the past dozen years. It doesn't help that the current Supreme Court is probably the most conservative Supreme Court in modern history, but that's not my primary complaint.

No, my primary beef with the current Supreme Court is that it continues to make fundamentally partisan, political decisions and wrap them up in the legacy of the Supreme Court in a way that makes these partisan decisions unchallengeable by anyone - not the President, not Congress, and not even the people of the United States. And that is seriously dangerous - both for the Supreme Court as an American democratic institution, and for the soundness of American democracy itself.

So, that's the background to my current skepticism of the usefulness and viability of the Supreme Court. I'll get to the current cases that actually sparked this series of posts on the Supreme Court tomorrow.


  1. Given that one of the most long lasting effects of a presidents term is their judicial appointments and more specifically their supreme count appointments we must recall which party has held the white house the longest since the 1968 election. To change the group persona of the supreme count we must change the ideology of the president for several election cycles. The courts hold a natural bias based on the nominators and two party system.

  2. Anonymous: That is definitely true. In the last post in this series, which will go up in a few days, I'll throw out some ideas as to how we can improve this situation - some of which would be relatively easily and feasible, and others of which would be difficult, unrealistic, and rather outlandish. I'll be happy to hear your suggestions as to how we could improve the Supreme Court as well.

    -The Angry Bureaucrat