The Supreme Court of the United States (SCOTUS) is in crisis, chiefly because it’s been compromised by the encroachment of machinations intended to result in a political make-up that reflects the ideological viewpoint of the political party in power, most notably, the Republicans.
Throughout most of its existence, the Supreme Court has had more of a balance between justices that might lean conservative with those that might lean liberal. But all this went out the window, beginning in the later part of 2016.
You may recall that 2016 was a presidential election year, the final year of the Obama Administration. With the death of Justice Antonin Scalia in February 2016, Obama nominated U.S. Court of Appeals justice Merrick Garland for the opening on the country’s highest court, but that was blocked by the Republican majority in the senate, where Senate Majority Leader Mitch McConnell stated that it shouldn’t be an out-going president that names a replacement justice, but the new one to be elected in November. That, of course, was Republican Donald Trump, who proceeded to stack the court with right-leaning justices, including Amy Coney Barrett in October 2020, just a month before that year’s presidential election, despite what the seemingly hypocritical McConnell may have said back in 2016.
Trump’s appointments of three justices to the court have swung the pendulum solidly to the conservative side of the spectrum, with Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining existing conservatives Clarence Thomas, Samuel Alito, and Chief Justice John Roberts, leaving associate justices Sonia Sotomayor, Elena Kagan, and Ketanji Onyika Brown Jackson as the only liberals. This gives the court an overwhelming 6-3 advantage of Republican nominees versus Democrat nominees.
And it’s showing.
The court, as presently constituted, has reversed precedent with its decision to scrap Roe v. Wade, a 1973 landmark decision that recognized a woman’s right under the constitution to have an abortion. In one swoop, the court struck down fifty years of jurisprudence. A decision that had survived fifty years of Supreme Court justices and 28 years of Republican administrations, including presidents Ford, Reagan, GHW Bush, GW Bush, and Trump. But it was Trump who stacked the court, primarily with Roe v. Wade in mind, mostly at the behest of the large evangelical and other Christian support given to him politically and financially.
It’s not that SCOTUS ruled a woman couldn’t have an abortion. Rather, they ruled that, in their “interpretation,” the determination of abortion rights was the purview of the state legislatures as per the division of powers between the federal government and the states. And this has led to the predictable chaos that is unique to America, where a patchwork of “laws” governing a “right” has led to different laws in different states, rather than the same law in all states. A legal hodgepodge if you will. Made in America, by Americans.
Roe v. Wade is just one area of jurisprudence that is currently under attack by the court majority and those who cheer them on, and these reversals will change the face of America by rolling back and eroding rights that have evolved over time, as in many decades. Same-sex marriages will no doubt be on the firing line, and if that’s the case, then the LGBTQ community will find itself under legal assault as well. It’s been suggested that something as accepted as inter-racial marriages might be up for discussion, although Justice Clarence Thomas has a wife who is white, and who just happens to be a hard-right Republican conservative. So I guess those relationships are safe.
All of this has led to an outcry from many, with demands that something be done to restore balance to the membership of SCOTUS. As such, there have been several suggested reforms for the Supreme Court of the United States to achieve this effect.
One of them involves the concept of what is known as court-packing. This would involve increasing the number of justices on the Supreme Court by adding more justices to balance the ideological composition of the Court and reduce the influence of individual justices. Critics argue that this could undermine the independence and impartiality of the Court, and I see the merit in that critical argument. As well, if one president can stack a court, so can another, until we have an unwieldy Supreme Court that rivals the senate in terms of membership numbers. It shouldn’t really ever come to this, but it’s one of the reforms mentioned. It unnecessarily politicizes the court even more than it is right now.
The establishment of term limits would probably be a good idea Advocates argue, rightly, that term limits would ensure fresh perspectives and limit the potential for partisan influence. There are term limits for the other organs of the government, executive and legislative, so why not the court as well? As well, the terms of the various justices could be staggered, like they are in the Senate and the House, the idea being that the court would never be out of synch with reality for too long.
How about ensuring a balanced bench? Some people propose enforcing a more balanced ideological composition of the Court, something that could involve ensuring a certain number of justices from each major party or requiring a supermajority vote for confirmation. Republican presidents can nominate candidates for the Republican cadre of justices, while Democrat presidents can do the same on the Democrat side. The only problem is who gets to make the call on the Chief Justice?
Mandatory retirement age is another proposed reform, such as it’s done in Canada where justices must retire at age at age 75. Currently, American supreme court justices serve for life, which has led to concerns about aging justices and potential political influence. The idea is to address concerns about older justices and the potential for cognitive decline, although critics will argue that this may force experienced and effective justices to retire prematurely. That said, we would hope that things like experience and effectiveness would be taken care of at the nomination and confirmation stage of the process. I mean, it’s the Supreme Court. Who is going to nominate and sign-off on an incompetent judge, assuming politics isn’t playing a primary role?
How about a code of conduct for Supreme Court justices to guide their behaviour and ethics? This would aim to address concerns about potential conflicts of interest and improper influences on judicial decision-making. You know, like Clarence Thomas accepting all manner of favours from Texas billionaires for vacations and travel, all the while having a political sleaze ball wife in Ginny Thomas, a vocal Republican operative and advocate of the Trump election fraud theory. No conflict there, Clarence, none at all.
No changes to the Supreme Court can be made without significant changes in the Constitution, which could and would be a lengthy, hard-fought, and complex process. Any attempt at such could trigger a constitutional crisis along political party lines as well as the lines separating conservatives from liberals. As in many things American, that could prove to be messy business.
NEWSMAGRENFREW 