Supreme Court on Wrong Side of History?

Much of the court’s power is not in the U.S. Constitution, and no government in the world had a third branch before the American experiment. The framers were mostly worried about disputes between states, so the court was to serve as a referee. The idea that the court would have a direct role in everyday life was not envisioned by the framers. Additionally, the Constitution provides scant detail on how the court should conduct itself, and the first court was notable mostly for its irrelevance.

John Marshall, the first Supreme Court justice of consequence, is more responsible for the court’s power than any other American. In 1803’s Marbury v. Madison, he gave the court the power of judicial review. This lets justices strike down laws solely based on their interpretation of the Constitution. Marshall’s 1803 power grab did not go without strong comment. Thomas Jefferson, a political ally of Marshall’s, hated the practice of judicial review so much that he considered it a threat to democracy.

In 1857, the court held in Dred Scott v. Sandford that persons of African descent could not be citizens. This decision destroyed any remaining chance of bringing slavery to an end outside of military means, as it forced free states and any new ones to uphold slavery. The ensuing conflict was the bloodiest war in U.S. history, the modern equivalent of 6 million people dying in battle. The Union did not adhere to the court's decision in Dred Scott v. Sandford during the Civil War, and the 13th and 14th Amendments later struck it from precedent.

The court didn’t reform after Scott. In 1896’s Plessy v. Ferguson, it gave a green light to generations of segregation laws by ruling that separate facilities for people of different races were permissible. These laws also obstructed the votes of people of African descent through poll taxes, citizenship tests and other barriers. Furthermore, these laws fostered a system of de facto slave labor and gave rise to decades of state-sponsored terror.

The court picked up fans in the Third Reich with its pro-eugenics ruling in Buck v. Bell. This infamous 1927 case held that states could forcibly sterilize women who were deemed undesirable. The above quote about “imbeciles” reflected the majority opinion, which led to tens of thousands of involuntary procedures on women in the ‘20s and ‘30s. Buck v. Bell was later cited by Nazi defendants at the Nuremberg war trials.

A better-known case of judicial malpractice came in 1944, when the court sided with President Franklin Delano Roosevelt’s military order to force the internment of over 120,000 Americans of Japanese descent. In Korematsu v. United States, the court held that the chance to stop espionage could justify a racist act, a decision that has since been rejected. Reparations of up to $20,000 per person for Korematsu were given to survivors and descendants in the Civil Liberties Act of 1988. The court cited an inclination to avoid repeating the Korematsu travesty in its ruling against a Muslim travel ban in the 2018 case Trump v. Hawaii.

The court’s 5-4 decision in 2000’s Bush v. Gore, which ruled to stop the vote recount in Florida, ended the election and awarded the presidency to George W. Bush. Nearly all of the justices who had been appointed by Republican presidents sided for the Bush campaign, while nearly all those appointed by Democrats ruled for Gore. This blew a hole through the modern belief that justices were neutral.The conservative majority also stated that “our consideration is limited to the present circumstances,” as opposed to any legal precedent.

In 2010’s Citizens United v. Federal Election Commission, the court ruled that restricting corporate donations to a political campaign unfairly limited free speech. The result was billions of dollars in new political spending by “super PACs,” and more opportunity for moneyed foreigners to influence American politics. What’s more, if money is speech, then Americans of lesser means have lesser ability to participate in the democratic process.

on The Carlos Watson Show!

The recent uproar over the leaking of a draft opinion illustrates how the court's deliberations, proceedings and inner workings remain mostly secret. And secrecy has not helped the court’s plummeting public approval ratings. Should its deliberations be made public?

The Supreme Court is the only U.S. judicial body without a code of conduct. Justices can choose to hear any case, including those in which they have a personal or financial interest. The question of whether the court ought to have a formal ethics code is currently an urgent matter, as Ginni Thomas, wife of Justice Clarence Thomas, has become a person of interest in the Jan. 6 insurrection.

At the dawn of the United States of America, lifetime tenure in the Supreme Court was seen as necessary, as it allowed judges to decide cases without worrying about their jobs if a new party took over. In the modern era of increased human lifespans, however, judges often serve well into their 80s. So perhaps lifetime tenure results in outsized power.

Conceived by Marshall and loathed by Jefferson, judicial review is not an essential fixture of the court: It could be changed. Revoking this 200-year-old tradition may seem like an extreme step, but as legal commentators now wonder if justices are little more than “politicians in robes,” extreme steps may be warranted.

The case for having more than nine Supreme Court justices may not be a partisan matter. In fact, it might be a matter of mathematics. Critics have long suggested that the highest court in a nation of 330 million people ought to have more justices than it did when the population was 40 million, as it was in 1869, when the court last expanded.

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