It's Time to Defang the Court

June 24, 2024

There’s only one week to go until the traditional end date for SCOTUS decisions on July 1 and arguably the most important ruling since the Nixon decision is yet to be issued. This is shameful. The gall of the Court to help Trump by overturning the Colorado Secretary of State’s decision (for the record, the correct decision) barring him for the ballot took only a few weeks, but one where Trump claims to have total immunity from any crime, including murdering a political opponent, has dragged on for months.

Of course, this includes the Court’s recent decisions on abortion rights, student loan forgiveness, labor rights, Justice Thomas’s blatant corruption, or Samuel Alito’s reactionary Christian Nationalism. I believe that we are at the point where the power of this Imperial Court must be broken to save Constitutional rule, very much like where we were in 1937.

We don’t need to pack the Court to do it. (Though we definitely should consider it).

Justice Owen Roberts. Credit: Oyez

In Federalist 78, Hamilton put forth an exemplary defense of an independent judiciary, calling it the “least dangerous” of the branches as it is limited to the “cases and controversies brought before it.” Beyond that, the Court would be unable to tax or levy armies. Hamilton stated:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

The Roberts Court in particular has gone far beyond its role in simply being the metaphorical umpire, calling balls and strikes: it has sought to undo the rights won in the last 150 years. In Dobbs, the Court has done its best to make women second-class citizens. In Janus, the Court tried to kill organized labor by depriving it of funds by eliminating “fair share fees” - charging a certain amount to employees who enjoy the protection and benefits of union membership without being members. Justice Thomas, in his concurring opinion in Dobbs, argued for overturning Griswold, Lawrence, and Obergafell. These are some of the most important cases in American history; expanding the right to marry and right to privacy.

NYT front page after Lawrence v Texas (2003)

So how do we break this Imperial Court?

Firstly, we have to recognize that the Court IS political. By choosing which cases to hear, the Court determines which cases will affect all Americans before they even rule on it. I don’t think that there’s an accident that many cases with far-reaching consequences have been designed to strip away labor rights, women’s rights, or LGBTQ rights. The question for the average voter is this: do you want a justice who believes in expanding the constitutional, political, and economic rights of everyday Americans or do you favor one that expands the rights of powerful moneyed interests and private institutions? You cannot have both.

Option 1: Jurisdiction Stripping

Under Article I Section VIII of the Constitution, Congress has the power to make inferior courts to the Supreme Court and assign jurisdiction. Similarly, under Article III Section II, Congress has the power to limit the Supreme Court’s appellate jurisdiction. If someone were to write a law and state the a federal court could not review it, then the Supreme Court would be automatically barred from hearing it unless it had original jurisdiction. Remember, the Supreme Court’s original jurisdiction is very limited. Nearly its entire caseload is appellant review of lower courts. Those instances of original jurisdiction are usually restricted to a state suing another or cases that involve ambassadors or public ministers.

Option 2: Requirements to Sit On the Court

There are not many requirements for justices to sit on the Supreme Court. Then-President Trump abused this lack of prerequisites to appoint some of the least-qualified judges on federal courts we’ve ever seen, such as Charles Goodwin, Jonathan Kobes, L. Steven Grasz, and others. It is not enough to simply be trained on the law to sit on a federal bench; there must be some courtroom experience.

While none of these people sit on the highest court on the land, they could in the future and if Trump wins in 2025, he could appoint them should any vacancies open up. Some simple requirements could include sitting on a district and circuit court for a set number of years, being a state supreme court justice, or other requirements relating to the goal of getting well-rounded justices.

Supreme Court of the United States

Option 3: Redefine “Good Behavior” or Set Mandatory Retirement Age

As many of us were taught in civics class, Supreme Court justices have a lifetime appointment to the Supreme Court due to Article III Section I:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

However, if the definition were changed by constitutional amendment or a law written stripping jurisdiction from federal court review changing Good Behavior to a defined time period (let’s say 15 years for sake of argument), the risk of long-term partisan blocs forming on the Court is reduced. Such a law could ban the reappointment of a justice. Remember, despite what the history books say, the Court IS political.

Alternatively, if redefining Good Behavior makes enough people balk, Congress could again strip judicial review and impose a mandatory retirement age of 70 for all federal judges. While experience and discernment are absolutely necessary for all judges, especially Supreme Court justices, we need to balance that with the need to ensure we have a Court more responsive and better-versed in the issues of the day. For what it’s worth, only two justices would be forced to retire if the retirement age went into effect: Alito and Thomas. Sotomayor and Roberts would have to retire in a year’s time.

This is by no means an exhaustive list of remedies for the current crisis that the Republic faces due to the ideological extremism of the Roberts Court. Others include a partial defunding of the federal judiciary, abolition of lower federal courts, repealing the All Writs Act, and packing the Court. All of these have benefits and negatives that need to be carefully discussed and balanced, leaving room for nuance and gray area. I do not have the space or expertise to discuss the ramifications of all of these in full here.

I hope that some of these judicial reforms are discussed more freely and taken seriously. Not since the Taney Court has a single Court done so much to undo the political, social, and economic progress we have made as a society. The Supreme Court relies on public support to give its rulings meaning and that is rapidly falling. Only 40% of Americans have a favorable view of the Court, per a 2023 Gallup poll. I would dare to say it will get lower before it gets better.

All of us should believe in the rule of law and equality for all. We should demand a better world for ourselves than our parents and grandparents will end up leaving us. We should want strong institutions that ensure justice and liberty. With this Court, we simply do not have that. The Roberts Court, by their actions, inactions, and rulings, have brought this need for reform upon themselves.