Tuesday, April 10, 2012

Our Crappy Supreme Court, Last Day - Can We Do Anything About It?

Seriously, Supreme Court, what do we have to do to ensure that you no longer hand down
amazingly, jaw-droppingly bad decisions like these?

We've come to the last day of my miniseries on the Supreme Court. In my previous posts this week, we've seen specific examples of recent, bad Supreme Court decisions made along 5-4 party-line, partisan votes.

When I review the trajectory of the Supreme Court over the past dozen years, I see a very troubling pattern emerging. I see the Supreme Court's 5 conservative justices making political decisions that are best left to the people's representatives in Congress, which could then be overturned by later Congresses if the people's democratic representatives deem it wise and prudent. I also see a pattern of the Supreme Court siding with the powerful against the powerless, and unfortunately, I see both of these trends continuing for the foreseeable future. For example, when the cases about Republican states trying to suppress Democratic voter turnout through repressive laws that are justified by totally bogus allegations of voter fraud reach the Supreme Court, I fully expect the 5 conservative justices to uphold the new repressive laws, siding with powerful and partisan interests in Republican states, rather than supporting the rights of the powerless - minorities, students, low-income voters, and the elderly - in the face of voter suppression by the powerful and partisan.

Unfortunately, the Supreme Court's record shows that it's not exactly a beacon of hope and justice for those suffering injustice at the hands of the powerful.

At its best, the Supreme Court is slightly ahead of the times when it comes to advancing the human condition in the United States - a good example was its ruling in Brown v. Board of Education (1954), which outlawed segregation in all US classrooms. Of course, there was already a substantial anti-segregation movement by the time the Supreme Court issued its ruling in Brown v. Board of Education, and segregation was already outlawed in many Northern states. Nevertheless, the Supreme Court gave constitutional legitimacy to the deployment of the National Guard in some Southern states that refused to desegregate otherwise - but it was the National Guard (or the threat of the National Guard) that finally forced desegregation in these areas, not the Supreme Court. So, that's nice and all, when the Supreme Court is slightly ahead of the times, but it's not exactly a ringing endorsement for the usefulness of the institution in American democracy.

At its worse, the Supreme Court is a primary source of sustained resistance against righting social ills - and unfortunately, throughout its history, the Court seems to have more often been a barrier to social progress than a promoter of it. In a surprisingly thoughtful article about whether we should start impeaching Supreme Court justices (which was only tried once, by Thomas Jefferson, who failed), David Dow gives an example that is far too representative of the Court's role in the US's government:
The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.

During that period—which ran from the years after of the Civil War to the start of the 20th century—wealth became highly concentrated and corporations came to dominate American business.

At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent—a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and constituted an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.

All these ills were ultimately addressed by the federal government, but the strongest and most sustained resistance to fixing them came from the court.
As I noted on Day 3 of this posting miniseries, one of the more terrible Supreme Court decisions was made during the Gilded Age - the decision in Hammer v. Dagenhart (1918) to overturn a federal ban on child labor and to nullify a federal minimum wage.

Even though the Supreme Court is a storied institution, its actual history demonstrates that it has upheld the social ills plaguing the USA as often (or even more often) than it has fought against them. The current Supreme Court once again seems to be engaging in partisan political quackery and in expanding the power of the already powerful at the expense of the powerless - all the while using the Constitution as a cover, when the reality is that the Founding Fathers could have never imagined the world that we live in today. Therefore, the Court should be more conservative in deciding which cases to take, as the political desires of the people of the USA should probably carry more weight in the conduct of the country than trying to use the Constitution as some kind of divination pool that the justices use to project their own (biased) understanding of the Founders' intentions on the modern world.

I will admit that I don't know what to do to improve the situation, however. The Supreme Court has done and can continue to do much damage to civil liberties, the social fabric, social progress, and individual and collective rights, but it's difficult to imagine a democratic system without an institution like the Supreme Court. At least one constitutional scholar argues that the USA has not been served particularly well by judicial review, finding it difficult to point to many cases when judicial review has actually benefited the country.

While pondering this post, I came up with a few different possibilities as to how we might change the current suboptimal situation, though I don't think any of them are particularly good - nor am I sure that any of them would be better than the system we have now. But, I'll still put some ideas out there, as I don't think that the current system is optimal or sustainable, since it is obvious that it can be gamed relatively easily for the political benefit of a particular faction.

Here are my possible changes to the Supreme Court, ranging from the simpler / easier to the more difficult / outlandish:
  • Establish term limits for Supreme Court judges. This would ensure that the justices turn over more often, meaning that the Court would be slightly faster to respond to changing morals and views among the people. However, this would also make the Supreme Court's preferences more closely match those of the current President, for better and for worse.
  • Declare that, in order to overturn a law passed by Congress or overturn established precedent, some kind of super-majority would be required. I don't know what the super-majority threshold would be - it could be 6-3, 7-2, 8-1, or even require a unanimous decision - but I do know that it's bad for our democracy that so many important decisions are being made by 5-4 decisions along party lines in the Supreme Court. But, this would have all kinds of problems - who/what decides when a case requires a super-majority? What do you do about cases like Florence's, when there's an individual involved who must receive a yes-no answer, if the vote is 5-4?
  • Expand the number of judges to dilute the importance of any particular judge - but that might not solve anything. Just ask FDR.
  • Make impeaching Supreme Court judges easier / more politically acceptable. This, however, might have the perverse effect of making justices MORE partisan, not less, especially if one party came to dominate the legislature to such an extent as to be able to bring impeachment proceedings without any input from the other party. I'm thinking of the Republican impeachment of Clinton in 1998, or the calls by many Republicans to impeach Obama for no reason whatsoever.
  • Eliminate the Supreme Court's ability to pass judgment on federal laws at all, essentially making the Supreme Court subordinate to Congress. The Supreme Court would have final decision-making powers on cases brought against state laws, but Congressional laws couldn't be challenged (or, perhaps could only be challenged at the President's request) - Congressional laws could only be overturned by later Congresses.
  • Eliminate the Supreme Court entirely and replace it with a series of district Supreme Courts that have jurisdiction over only a limited number of states, not the entire country. That way, people in the Northeast could have liberal interpretations of laws to match their preferences, and people the Southeast could have conservative interpretations of laws to match their preferences. People could move to a district where the interpretation of the laws matched their personal preferences and would have to be informed of the differences in laws between the districts (e.g. "it is illegal to carry a concealed handgun in the Northeast" or "You may be shot if someone feels threatened by you in the Southeast") to facilitate travel. This would probably lead to the balkanization of the US.
Of all the ideas I came up with, only the first two are probably feasible/reasonable, though they come fraught with considerable problems of their own, both constitutional and logistical.

Anyone else out there have any brilliant ideas as to how to fix our crappy, antiquated Supreme Court? I think it's obvious that something has to be done, but I'll admit that I'm rather at a loss as to what that might be.


  1. That is a whole mess of words to just say "
    I don't like the supreme court and shizz." Brevity man.

    1. Fair enough point, but a guy's gotta vent somehow, and brevity isn't conducive to venting.

  2. Today I Googled "Is the current Supreme Court the worst in US history?" Luckily it took me to your website, where I read your series. Thank you. I needed that. Citizens need to read this. I have sent you a donation as a token of my thanks.

    1. I'm glad you enjoyed the series - and thanks very much for your support! Be sure to bookmark the website or subscribe to the posts, and do keep in touch!

      -The Angry Bureaucrat

  3. Initially SC justices were a lifetime appointment, when a lifetime was 60 odd years. Appointments should be limited to that number of years.

    1. Anonymous: I agree - some sort of term limit would probably be the easiest way (both logistically and politically) to mitigate the damage the Supreme Court causes. Unfortunately, I doubt we'll see that anytime soon, however.

      -The Angry Bureaucrat