Written By: Anton Sawyer
It should come as no surprise that the Supreme Court of the United States would act like overbearing, petulant children when being called overbearing petulant children. This is where we are at in 2021. A 6-3 conservative majority who have done their absolute best to toe the political line of those who gave them a path to the giant comfy chair of judgment.
Yes, this is something that has been done through the ages to one degree or another. But the brazenness with which this specific conglomeration of justices has acted—both in their rulings and responses—is beyond the pale. When the late Justice Scalia voted to decimate the rights of a class he didn’t like, the rulings he would write could at least be PLAUSIBLE. It’s this sordid history (along with identity and adversarial politics being commonplace) that I’m looking at in this article today. Between these current problems, combined with the 2021 SCOTUS docket, it’s painfully clear that if the Supreme Court is as partisan as they are perceived to be, then the nation is going to look very different within the next two to three generations.
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The Beginnings Of Judicial Power
In a 2020 article published in the Harvard Political Review, the entirety of how the Supreme Court ended up becoming such a political juggernaut was broken down succinctly. When looking at Article III of the US Constitution—the portion which defines the judiciary—it’s pretty scant (comprising of a mere 375 words). The relative brevity of Article III reflects what the founders intended as the original position of the courts in the government’s balance of power: dead last. Many of the founding fathers addressed their concerns about the American judiciary having so much power.
Former President James Madison wrote, "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow.” And former President Thomas Jefferson said, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”
The empowered Supreme Court we see today is instead the result of perhaps the most consequential court case in history: Marbury vs. Madison. The case’s details are now irrelevant, but John Marshall’s establishment of judicial review in its majority opinion is the reason we really care about the Supreme Court at all today. Judicial review is what enables the Supreme Court—lower courts, too—to declare laws and executive orders unconstitutional, and it is by far the greatest power endowed to the judicial branch by the government. The idea behind the brevity of Article III was that the courts would not be a particularly important or contentious part of political life. Because the Supreme Court’s authority was largely determined by Marbury vs. Madison and not the Constitution, much of its organization relies on convention and judicial whim. So, to recap: the founding fathers knew the potentially disastrous consequences of the judiciary having unlimited power and did what they could to install safety measures to prevent such a thing. Then precedent took effect, and we now have the judicial branch of the United States as being the most powerful of the three.
The Natives Are Getting Restless
The general public has been found to agree with the opinion of the court having unlimited power and its need for oversight. According to a 2019 Quinnipiac University poll, 51% of American voters believe the Supreme Court "should be restructured in order to reduce the influence of politics." But the partisan divide was stark: 69% of Democrats favored restructuring, while just 32% of Republicans agreed. This isn’t surprising, given that the GOP was gifted (?) the ability to fill three Supreme Court vacancies during the Trump administration. Between this polling data, along with the backlash to the Texas Abortion Ruling of 2021, the feelings of the judiciary got hurt. Their feelings were hurt so badly that some of them felt the need to come forward and express themselves.
During the summer of 2021, the Supreme Court justices struck back in very public forums. In remarks given at the University of Louisville, Justice Amy Coney Barrett pushed back against media characterizations of the court’s decision-making as politically motivated, insisting that “judicial philosophies are not the same as political parties.” She urged the public and the media “to evaluate what the court is doing on its own terms,” noting the distinction between criticizing the court’s reasoning and accusing the justices of “acting in a partisan manner.” Her colleague, Justice Stephen Breyer, has also argued that the court’s legitimacy depends upon the public perceiving that its decisions are based on the rule of law rather than partisan politics. While their concerns are understandable, their actions may be contributing to the very partisan perceptions they oppose. The amusing part of this retaliation by the justices lies in the fact that they are so arrogantly oblivious to how they appear to the citizens at large. It’s like dictators who twist the laws of their country to fit whatever agenda they feel is in the best interest of their people (either by “vote” or coup), and how they will always be the first to tell you how amazingly centrist they are towards all laws and peoples. In both cases, the same level of hubris can be found.
Because of the hat-trick that Trump was able to pull off with filling the three empty Supreme Court seats, the liberals of the nation had started the rumblings of packing the court shortly after the beginning of the 2020 presidential election cycle. Looking at history, this is not likely to happen. The number of justices who sit on the Supreme Court is not written into the Constitution, and Congress has the power to change it. This has happened numerous times, with the last being in 1869, where it has remained at nine justices ever since. The last serious consideration for court-packing was in 1937 by former President Franklin Delano Roosevelt. In an attempt to force his New Deal legislation through, he had seriously considered the move. However, Congress never enacted the plan to expand. Since then, it has almost always never gone well for whichever candidate was seriously looking into the notion. There is good news for the commoners who see these lifetime judicial appointments as anathema to our core American values. Laws are being looked at—and drafted—for the next legislative sessions in various statewide congressional meetings that could put term limits on justices.
A lot of these potential laws are still in their infancy. I will write about them in a future article once they are about to pass or are more solidified. Looking at where these pieces of legislation are heading, it looks like the days of the eternal-judge may be numbered (literally and figuratively). Sign up for our mailing list if you're interested in that deep dive.
2021 SCOTUS Docket
Though more cases are being heard than the ones I’ve listed below, I feel that these are the ones that could have the most impact on our constitutional freedoms going forward. Given what we already know about the SCOTUS in its current condition, it’s looking like we’ll soon be partying like it’s ’99 … by that I mean 1899.
Dobbs vs. Jackson Women's Health Organization—The scope of the constitutional right to abortion is at stake in this case, to be argued on December 1st. It involves an appeal by Mississippi to revive the state's Republican-backed law that bans abortion after 15 weeks of pregnancy. Lower courts have ruled against the state. Mississippi is asking the Supreme Court to overturn Roe vs. Wade, the landmark 1973 ruling that legalized abortion nationwide.
New York State Rifle & Pistol Assn. vs. Bruen—This case, to be argued on November 3rd, could further expand gun rights in a National Rifle Association-backed challenge to New York state's restrictions on people carrying concealed handguns in public. The case tests the scope of the U.S. Constitution's Second Amendment right to keep and bear arms and could undermine firearms control efforts nationally.
Carson vs. Makin—Religious rights are at issue in this case, to be argued on December 8th. It involves a challenge to a Maine tuition assistance program that bars taxpayer money from being used to pay for religious instruction in schools. The court last year endorsed tax credits in Montana to help pay for students to attend religious schools, one of several rulings in recent years broadening religious rights.
I know that the negativity towards the SCOTUS can come off sounding like a broken record. Given that the judges cannot be voted in by any constituency, the laws which they have sworn to uphold are one too many steps removed from those most impacted by the rulings handed down. The closest time I can recall watching faith and the legal system become this intertwined was during the George W. Bush administration when he used the 2004 campaign promise of amending the constitution to say that marriage would be defined as one man and one woman.
The main difference between then and now is that I do believe there are enough politicians who approve of chicanery to make this union of faith and law indivisible … with justice for none.
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