The Supreme Court of the United States has become an arm of the Republican Party, using judicial activism to achieve an agenda that could not be accomplished through a democratic process.
This is not just a case of a pendulum swinging to the right after a period of relative liberalism. These justices were trained, recruited, and privately vetted by unnamed wealthy donors, through dark money groups like the Federalist Society and Judicial Crisis Network, which spends millions backing some supposedly apolitical judicial nominees while blocking others.
In a country in which a presidential election decided by 5 percentage points is considered a landslide, these behind-the-scenes powers have engineered a 6-3 court – a two-to-one Republican majority. Although they are sometimes styled as “conservative” judges, they are not. They are radical in their approach, dismissive of precedent and blatantly political.
If not subject to reform, this Republican court will hamstring the legislative and executive branches of government, while making unpopular policy the law, insulated from the voters by their lifetime tenure.
The current term, which ended Thursday, showed what they are capable of if they are not stopped:
• Dobbs v. Jackson Women’s Health Organization, in which women’s right to an abortion, and by implication everyone’s right to privacy, was eliminated. This sweeping, radical opinion will cause maternal deaths and injuries, burden families while whipping up conflict in state legislatures, the courts and in the streets for years to come.
• New York Rifle and Pistol Association v. Bruen, which prevents states from regulating who can carry a gun in public, whether they are hunting in the Maine woods or waiting for a subway in Manhattan.
• Carson v. Makin and Kennedy v. Bremerton School District, two cases that tear down the separation between church and state. The court opened the door to taxpayer funding for religious education and coercive worship led by a public employee while he is carrying out his official duties.
• West Virginia v. EPA, in which the court’s six Republican-appointed judges said the Clean Air Act does not authorize the regulation of carbon pollution that comes out of coal- and gas-fired power plants because Congress didn’t know about climate change when it passed the law in 1970. This bonanza for polluters will hamstring the federal government’s ability to combat climate change.
Taken together, along with recent decisions that permit partisan gerrymandering, racially biased voting laws and the free flow of corporate spending in support campaigns and direct payments to politicians track perfectly with the Republican issue agenda and the party’s interest in holding onto power.
What they do next could be even worse. The majority of the court, which chooses the cases it will consider, has taken on the case of North Carolina Republicans who want state legislatures to have the authority to conduct elections without review by state courts.
A ruling in that case could give states the power to do what pro-Trump conspirators tried to do after losing the 2020 election, and substitute Republican electors for president, even if the party’s candidate did not win the state.
We can’t wait this out. There are a number of proposed reforms that would bring the court’s power back into balance. The Constitution requires that there be a Supreme Court, but it doesn’t say how many judges it should have. Tradition has determined that the right number is nine, but this court has broken many traditions.
The group Demand Justice has proposed legislation that would add four justices to the court, and limit terms so that openings predictably follow election results. There is too much at stake in the current system of random openings when the sudden death of a justice creates a succession crisis you would expect to see in an autocracy.
Others have proposed expanding the court even further – bringing it to 20 or more justices working in randomly assigned panels – making the personality and politics of an individual less of a factor in the court’s decisions.
These kinds of reforms are possible only if we insist on them. But we cannot continue to send people to the House and Senate who are satisfied with the political capture of the judicial branch and want to keep things just as they are.
The Supreme Court has lost its legitimacy in the eyes of millions of Americans. Only significant reform can win it back.
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