Scrap It and Start Over: Part 1 – The Supreme Court

This is part 1 of a 4-part series exploring what is wrong with the United States’ government.

The Supreme Court of the United States has been bad for a really long time, if it ever worked at all. And I don’t mean because it has a conservative majority. The conservative majority is a symptom rather than a cause of the Court’s issues. It’s long past time we scrapped it and started over.

According to the website, uscourts.gov, the Supreme Court has four roles in our government. This is worth a block quote:

First, as the highest court in the land, it is the court of last resort for those looking for justice. Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power. Third, it protects civil rights and liberties by striking down laws that violate the Constitution. Finally, it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities.

www.uscourts.gov

The role of court of last resort is what it is. On some level, if we want an appeals process, we need a termination point for the appeals so they don’t go on forever. Although, the second a jury is absent from the proceedings, it’s no longer a democratic institution and doesn’t seem right in a supposed democracy. As far as I know, appellate courts, including the Supreme Court, do not consult the people in their decisions.

The role of judicial review is the Supreme Court’s biggest problem. That might sound a bit strange since it is the Court’s most famous power. First of all, this power is not from the constitution. The court gave itself this power in 1803. That, on its own, calls into question the court’s legitimacy. It makes the court a kind of unmoved mover. But beyond that, it effectively exempts the judiciary from the checks and balances system that we are supposedly so proud of. The only checks on the Court’s power are a limited amount of control over who sits on the court. New justices have to be appointed by the President and confirmed by the Senate. And sitting justices can be impeached. Although, the Court does not even have a code of conduct, so what might get a justice impeached is anyone’s guess. The other two branches of government can’t really do anything about an egregiously bad ruling. People talk about codifying in law something that Congress wants, but there’s nothing stopping the Supreme Court from declaring the new law unconstitutional. Judicial review is a secretive, obscure process with no checks. It couldn’t be less democratic.

The third role, to protect civil liberties, is a joke. The Court takes away civil liberties at least as often as it grants them. Remember, it was the Supreme Court that made separate but equal a thing. We can’t only look at the decisions we like. And we can’t assume the Constitution will explicitly protect people’s rights even if the Supreme Court actually used the Constitution as it’s guide.

Finally, there is the role of setting acceptable limits on majority rule. This is a necessary thing, but the Supreme Court consistently botches it. For our country’s entire history, the Supreme Court has allowed a tyrannical majority to abuse the black minority. And when the majority of people don’t line up with the Court’s priorities, the Court creates the conditions for minority rule. Those are both terrible things.

These are enough reasons to want to scrap the Supreme Court, if not the entire judiciary branch. The standard calls for reform don’t go nearly far enough. Expanding the court is a slippery slope if I’ve ever seen one. (Although it would be funny to see more Supreme Court justices than congresspeople.) Term limits are fine, but it’s not like justices waste time doing terrible things. They can do a ton of damage in their terms. Scrapping the institution does raise the question of how we do the things that the Supreme Court is supposed to do. There are lots of possibilities and I’d like to see a broad discussion of the options. I do have some ideas, though.

For a court of last resort, I’d say we don’t need one at all. If something is appealed, it can go to a new jury. If that jury disagrees with the first, a third jury breaks the tie.

Judicial review should be left to the people. We could have a referendum and vote on the issues. This is just too much power to leave in the hands of nine people.

Ensuring basic rights should be the responsibility of the entire government anyway.

Protecting the minority from the majority is a tricky one. I’m not sure how to handle that, but since the Supreme Court has done such a lousy job of it over the years, it’s no reason to keep the Court.

The Supreme Court is too broken for reform. They are inherently undemocratic, they have too much unchecked power, and they simply don’t consistently do their job. We need to find another way. How would you fill the Court’s roles?