A Failing Court
Throughout my lifetime, I’ve always thought the Supreme Court was designed to be the apolitical leg of our democracy. Of course, it is impossible to remove interpersonal “politics” from any institution, but here I am talking about public politics. With lifetime appointments and a small working group of what should be eminently qualified legal scholars, one would hope that they would use the power at their disposal to rise above the political fray and truly serve the very best interests of the public at large.
Of course, this would not be an easy task, even for the very best of us, but I think people in the past have genuinely tried to structure the Court such that it had the best chances to escape politicization.
I often laugh when I read any news about elections in a dictatorship. At their least laughable, such elections have 80% of the population voting for the self-appointed special “one.” Others win with votes counting in the upper 90s. This is, quite obviously, absolutely ridiculous.
Living in a country like America that has enjoyed, very broadly speaking, a remarkable level of freedom for a very long time, it is easy to see that on any political issue of any substance (except for, maybe, acute issues of national defense), you cannot get anywhere close to 80% agreement among the body politic. It just doesn’t happen.
In roughly 250 years of existence, there has been a clear political divide that separates people, at least to my eye, into those who lean towards the ideals of Thomas Jefferson and those who tend towards the thinking of Alexander Hamilton. While the line moves and each “side” shifts in terms of its priorities and how it reflects their philosophies, I believe it fair to say that the principle struggle is between individual liberty and collective strength. Historically, about half the population falls into each “bucket” and the balance has swung back and forth for centuries.
But, it’s been a remarkably productive “swinging” and the struggle, in which the two sides have have competed, has produced an “equilibrium” of sorts that has served the people quite well. I believe this is because both Jefferson and Hamilton are fundamentally correct and the “continuously negotiated balance” between the two points of view produces a siutation in which individuals can thrive as they simultaneously participate as parts of a larger system. The country at the time of its founding was far from perfect, which is still the case today, but its path has been one in which the country’s core promises of “life, liberty, and the pursuit of happiness” have steadily become available to greater numbers of Americans. It is indeed a journey, but today’s typical American enjoys peace and prosperity on a level that few people in other times and/or places wouldn’t embrace without a second thought. We’re pretty lucky.
“America” is a country, yes, but more importantly, it’s an ideal, at least when it is at its best. As I’ve written in the past, my immigrant ancestors were all escaping some impingement on what they saw as their personal freedoms, be they forms of either religious or economic persecution, and sometimes both. They didn’t arrive in a country that was perfect at all in either regard, but America was a huge improvement on their reality elsewhere and their promise for improvement was greater here.
This promise and the gifts of peace and prosperity we’ve enjoyed have in large part come from our ability as a people to compromise with each other and to allow some differences just to be differences with which we can live. As a people, we’ve agreed to forego extremes to maximize collective happiness. Regrettably, however, there appears today to be far too many people who are willing and choosing to live at the extremes and, therefore, far too few people seeking compromise. To compound the problem, the structure of our political system today is clearly oriented such that the extremes have far too much disproportionate power and influence. This all could easily lead to tragedy.
Which brings us full around back to the Supreme Court. Or, as I currently see them, the nine least accountable powerful people in the country. And, they have become far far too open to use their power in the interests of partisanship and ideology.
Ideally, as noted above, the Court ought to be composed of eminently qualified legal scholars. That should be an absolute minimum exception given the power of their positions and the remarkable freedom in which they operate. But, we should be able to expect more. Wisdom, common sense, compassion, and humility all come to mind as qualities we expect of any judge. Most importantly, though, of the nation’s highest court, I would think we could and should expect an ability to compromise in the best interests of the the country and its people.
The performance of the court in the interest of the public good, however, has been pretty poor over the past twenty-two years. Whether a person, a company, or a country, it’s absolutely critical for long-term success to get the big questions right. And, this is where I see the court as floundering.
Their intervention in the 2000 election between George W. Bush and Al Gore was, to my mind, unnecessary and driven by partisan interests. Elections are managed by the individual states and, as I saw it, Florida was doing the correct thing by being as careful and transparent as they could be with their recount. As the Court’s decision came in early December, there was no imminent crisis with regard to a timely transition of power. Such transitions had happened in March during the early years of the republic. We had time. They should have let the process play out.
Yet, the Court chose to intervene and, along party lines, basically decided the election, thereby substituting their will in place of the will of the voters of Florida. Either way, Bush or Gore, it should have been the State of Florida that certified their results based on its own laws and practices and the will of its people. The Court’s intervention was absolutely unneeded to settle that election and when they saw that their own votes went along party lines, the wise thing to do would have been to remove themselves from the process and let the voters speak.
As I wrote a month ago, in 2008 the Court somehow read the 27 words of the Constitution’s 2nd Amendment and found that only the final 14 words (“the right of the people to keep and bear Arms, shall not be infringed”) were relevant. My argument was essentially that a lexical analysis of the amendment indicated that the the language, taken as a whole, conveyed the right only within the context of a “free State’s” security through a “well regulated Militia.” Interestingly, or maybe not, that is the historical understanding of the amendment, both by our courts and the general populace. The Court, again, seemed far more partisan and ideological and far less legally minded in this decision.
The Citizens United decision in 2010 is, in my mind, perhaps the worst Supreme Court decision of my life. I do not think any factor is more responsible for undermining the effectiveness and perverting the direction of our national politics than the money plowed into our elections by the wealthy, corporations, and well-funded special interests. The corrosiveness of all this money has led to a situation where the voices of regular people are pretty much never heard and our “representatives” are so dependent on campaign contributions that they spent as much time raising money as they do on working on behalf of their “constituents.” And, it turns out that the constituents they work for are those moneyed interests, regular people be damned!
Yet, despite this being painfully obvious to regular, real people, the Court somehow found that corporations are entitled to the same rights in our Constitution despite the fact the words “the people” are used throughout the Bill of Rights while corporations do not warrant a single mention (in the Bill of Rights or anywhere else in the Constitution). Seriously? When a “corporation” can actually talk or write or serve in the military, then by all means, they can enjoy the same freedom of speech that I (currently) enjoy. Until then, however, that right needs to be reserved for corporeal beings. Yet another vote on a fundamental issue that went along party lines.
The Voting Rights Act, passed in 1964 to address centuries of systemic disenfranchisement of black Americans, had a key provision gutted by the Court in 2013 after nearly 50 years of being both highly effective legislation and a law that had been repeatedly affirmed by overwhelming Congressional votes decade after decade. Yet, again, a vote along party lines effectively dismantled critical protections for minority voters. Worse, the Court made arguments supporting its decision along the lines that racism was no longer a substantial enough problem in America to support continuation of the stricken provision. They also intimated that the “technical” legal problems with the provision could be easily remedied by Congress. One seriously has to wonder what planet the justices were living on to be that far separated from reality on either argument.
And, this past week, you have their decision to overturn Roe versus Wade, which realistically has been the primary factor driving the nomination choice around every Republican appointee since Reagan offered Antonin Scalia as a candidate. I am not sure that all of the Republican presidents were invested in overturning the 1973 Court decision, but they were highly interested in the votes of the religious right and Court appointees were the currency used to secure their support.
Arguably, the issue of abortion may have had a more profound effect on American politics than any other issue of the past 40 years. The Republican Party today looks quite radical and the Court, because of appointments made on very narrow critera, looks as if it may be just as extreme. And, this most recent decision and its fallout may also be the primary driver of our politics for the next generation, too.
The modern Republican Party is the most unusual of political coalitions. Best I can tell, there are three distinct constituencies, none of whom truly share much other than the fear of losing something “dear” to them. “Traditional” Republicans would claim to be primarily pro-business and are most interested in preserving the wealth and power of businesses and businessmen by maintaining low tax rates and minimizing regulation that, to their eye, raises the cost of doing business. They fear losing their money.
“Traditional” Conservatives would have claimed to be most interested in maintaining their freedoms. They favor small government and lightly applied limitations to freedom, both of which fit nicely with low taxes and minimal regulation, so there’s a natural affinity with pro-business Republicans. Conservatism has always had an extremist faction associated with it that Republicanism has not. This is perhaps most clearly expressed through the gun rights movement with the very extreme aspects of this group showing up in the “private” militias that enjoy no government sanction whatever. They fear losing their guns.
Social Conservatives have come to be dominated by the “religious right” and would claim to be bound together by traditional family values. They fear the loss of morality in the general population and the “glue” that has largely held them together has been the dream of overturning Roe vs. Wade.
It is hard to imagine the titans of industry that have long controlled the Republican Party having many common priorities with militia leaders or with those focused on God. Likewise, one should not easily conflate the teaching of Jesus with the possession of an AR-15, but one easily conjures up images in Republicanism today that connects Jesus to guns. Strange bedfellows, indeed, but the reality is that none of these constituencies on their own is large enough to win federal elections and none fit neatly with liberal interests. But each fears losing something important to the “left” and, thus, those fears become the foundation on which this strange coalition is bound together. And, in terms of electoral success, this odd coalition has been remarkably effective.
But, it’s been successful at a serious cost to the country (where “country” is defined as the “whole of us”), and that cost may be rising. There are a wide variety of reasons for this, but one of the most consequential has been in the area of judicial appointments. This has been consequential because, for many Republicans, there’s been the decades-long simple singular goal of reversing Roe vs. Wade, a goal that has kept the religious right solidly backing the party’s candidates (largely regardless of any other considerations about the candidates).
One may argue that the 2nd amendment is also a factor with their judicial appointments, but I don’t think there is a rational case to be made that gun rights are under any serious threat in this country. Universal background checks, stronger licensing requirements, and a ban on military-style weapons seem to be the absolute limit of gun restrictions the general public desires, and those moves have overwhelming support among the population and even majority support among gun advocates. There is simply no serious discussion of disarming the American population of firearms used for hunting or personal protection.
But, abortion rights is a real fight with strong opinions and voices on both sides of the argument. And, given the events of the past week, the religious right was won a long-fought battle for sure.
The price that’s been paid for that fight, however, is extraordinary for America as a country. The power of those on the Court is enormous and they are more insulated from outside pressure than people in almost any other profession. As such, it is imperative that they be chosen extremely wisely and in such a way as that the good of the entire country is fairly addressed.
But, Congress, who has a huge amount of Constitutional freedom to the shape the workings of the Court has done, not unsurprisingly, a very poor job of structuring a Court that works for either the good of our modern country or the good of all of its people. Those flaws have been clearly exposed by Republicans, in practice, having a singularly focused “test” for who would make a good candidate for the bench.
Let’s go back to the cases I highlighted at the outset of this piece. The 2000 election, campaign finance, voting rights. All were decisions made rigidly along ideological lines. Not what’s in the interest of the country, but along what’s in the interest of “my tribe.” And, Republicans have played a masterful, if not deceitful and dishonest, game of politics to ensure that their “tribe” is represented even as the Court makes decisions that are discordant with the views of majorities of Americans. They have successfully “gerrymandered” the Court, so to speak.
The design of the Court and how it is overseen facilitates exactly this outcome, though, and this is a problem for Congress. There’s no rule governing timelines about replacing departing justices, so Mitch McConnell can ignore historic precedent and deny Barack Obama a rightful opportunity to appoint a justice. Likewise, he can reverse, without penalty, his establishment of his own new “norm” and, with a much shorter time to election day, allow Donald Trump an appointment that probably legitimately should not have been his.
Additionally, Senator McConnell could decide essentially on his own that the Senate’s 60 vote threshold did not apply to Supreme Court appointments. Rather, a simple majority would suffice. To those interested in what’s best for the whole country, though, the 60 vote requirement is precisely the kind of mechanism that should be used for such important and critical decisions. For most issues, a majority is probably good enough. But, not for these appointments!
This is especially important when the majority side is singularly focused. Even if they’re not willing to say it, it has been absolutely clear that one’s abortion stance has been a litmus test for nomination and approval by Republican leaders. Beyond that, they had to appear credible, of course, but I am absolutely positive that their nominees have not reflected the best in terms of legal scholarship nor have the nominees been those who were motivated to do best by the country as a whole. The voting records are clear about the partisan interests. Consequently, ideology wins out over reality about what the country needs. To my eye, in any major decision, ideology falls short. Practical decisions in the interests of the whole is where we need to be.
This is the failure of a monoculture, and it is huge. Ideologues make poor leaders. They should have a voice and a part to play, but they should not be final decision-makers and sole arbiters as the breadth of their vision is too narrow and, therefore, they always fail to work for the holistic interests of everyone. Thus, they fail the country since the “country” is ultimately all of us. Poor Congressional design of the Court enables this shortcoming and it is time that we take a good hard look at the rules that define this powerful institution. The Court should reflect all of us.
We need to further give thought to the more widespread failure this country has with regard to “representation.” Of the Presidency, the Senate, the House of Representatives, and the Supreme Court, only the House appears to be representative of the populace in our time. The Electoral College has in the past quarter century failed twice to install as President the winner of the popular vote. Whereas the President is the only federal official for whom we all have a vote, every American’s vote should matter in that choice. The high failure rate of the past 25 years in the College reflecting the will of all the people demonstrates a serious flaw in the people being represented in their own government.
The Senate is supposed to serve to protect the balance between large states and small states, and I honestly believe there is a lot to be gained for the country by preserving that arrangement. Inherently, that body, therefore, will not necessarily reflect the country as a whole in terms of political constituencies, but it will honor the fact that all of us are needed to make this country and those in small or lightly populated states need a strong voice, too.
But, if the Senate is going effictively control the Supreme Court while the Electoral College continues to disenfranchise the majority will of the people, then there is too much concentration of power. And, when there is a lack of balance in the power structure, dishonorable people, like Mitch McConnell, will, in the interests of political and ideological success, abuse that power to further disenfranchise the people as a whole.
Which brings us to the biggest failure of all, which is that of the electorate to hold its government accountable. When a country comes to the point where a tiny group of ideologues are making huge decisions that are out of line with clear majorities of the people, there is a critical need to make changes. But, to do so, the electorate has to be engaged enough and informed enough to muster the motivation it needs to make its government work for everyone.
A failing Court is just a single part of a system that needs some rethinking so that it is more accountable to all of the people. We should start with a Constitutional amendment process that belongs more directly to the people with less reliance on representatives. With that, “we the people” could establish some clear directives to Congress with regard to how Court appointments are to be made. The Court clearly needs reform and the conditions of that reform should come from the people. The anachronistic Electoral College could be shelved so that the Executive Branch is a counterbalance with strong collective support to an inherently unrepresentative Senate. The people should clearly tell the Court that corporations are not people and that efforts to disenfranchise the will of any voter is unacceptable.
Successful countries need balance. People are inherently different. Their interests are different. They have differing opinions. But, as a country we should be all one, and that “one” is reflected by our strong “natural” right to be free to be ourselves and hold our own opinions and pursue our personal interests to the extent that our freedom does not impinge any one else’s. Today we lack that balance and it shows in our national governance. It is time that we, the people, act such that we get changes that will benefit and protect us all. As one.