Tuesday Talk*: Does SCOTUS Need Fixing?

Last night, Amy Coney Barrett was sworn in as the newest associate justice of the United States Supreme Court by Justice Clarence Thomas. This should come as no surprise to anyone, as it was absolutely certain that it would happen, and yet it brought howls of anger, outrage and condemnation. That should probably come as no surprise either, as it’s become America’s favorite pastime.

The dire predictions of disaster have generated a variety of ways to “fix” the Court now that the Republicans have “illegitimately” seized control of it by a 6-3 conservative majority. But this begs the question: Does the Court need fixin’? Liberal Harvard lawprof Noah Feldman was ahead of the curve on this question.

Behind all of these questions lurks a deeper one: Does the Supreme Court really need reform? It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose.

In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives.

Could this be true, given that so many are screaming that this is the death of hope at the Court? The New York Times was ready for its assault.

The Supreme Court is supposed to be a counterweight to the will of the majority. But it needs constraints. Here are six ways to reform the courts — and one argument that we shouldn’t change a thing.

Does it “need constraints” beyond fidelity to law, regardless of what the tyranny of the majority would demand?

Are liberals sounding an alarm now because they fear the impending results, not the principle, of judicial overreach? In part, yes, but that’s not the whole story.

There is also a structural critique of the Supreme Court’s role. The justices can lag somewhat behind the elected branches. They can, and often should, be the protector of minorities whom the majority may trample (including religious groups, a current concern of conservatives). But if the court yanks the country too far from the elected branches, the Constitution gives Congress the power to rein in the court.

The Court plays a critical role in our system of checks and balances, as does Congress, The latter’s role is to reflect popular whim. The former’s role to constrain it to the limits of the Constitution and laws. Should the Court be “yanking” the country at all?

Even now, Republican dominance over the court is itself counter-majoritarian. Including Amy Barrett, the party has picked six of the last 10 justices although it has lost the popular vote in six of the last seven presidential elections, and during this period represented a majority of Americans in the Senate only between 1997 and 1998 (if you count half of each state’s population for each senator).

Whether Emily Bazelon’s math is correct or not, she’s not shy about claiming that her tribe is the majority. But is this a bug or a feature of a system where the Supreme Court’s role isn’t to serve as another legislature to further the tyranny of the majority?

Georgetown prawf Randy Barnett is the only voice against the cries for change.

Some people believe that the court already acts “politically,” so why not treat it as such? They may believe that our norms have already been busted beyond repair and that politics is already a brutish war of all-against-all.

But the reality is that things can quickly get much, much worse. Court packing and term limits for justices are just the first steps down a steep and slippery slope.

While some people believe that the Court is now completely political, with justices doing their team’s bidding and, with the addition of Justice Barrett, about to destroy our nation, few are addressing the underlying question: Is the Supreme Court really broken? Do we wait and see or do we head it off at the pass in anticipation of the sky falling? Is it the Supreme Court’s job to fill the popular void because Congress no longer seems capable of functioning?

*Tuesday Talk rules apply.

49 thoughts on “Tuesday Talk*: Does SCOTUS Need Fixing?

  1. Alex Sarmiento

    As a very low IQ individual here is my comment: If there’s something very wrong with some Justice then the political braches can just impeach and remove them. But there isn’t so they won’t. This is Critical Theory happy hour so let’s declare the whole system broken to distract us from the fact that the political class is utterly incompetent and mediocre nowadays.

    Reply
  2. Richard Kopf

    SHG,

    When it comes to “fixes” for the Supreme Court, the first thing is to do no harm. Let things simmer.

    Then see whether cases like Bostick v. Clayton County, Georgia
    are modern iterations of the decisions of the Oracles of Delphi or the perfectly predictable march of the common law (fancied up in gobbledygook of constitutional law).

    We have plenty of time to make changes if changes are needed. The question is whether changes are needed. That requires some serious and unhurried thought.

    All the best,

    RGK

    Reply
    1. SHG Post author

      I made a similar remark on the twitters yesterday, and was informed that Hitler should have been stopped in the ’20s, before he could do harm. Apparently, we lack the ability to clearly see into the future, since others are absolutely certain that we’re on the eve of destruction.

      Reply
    2. norahc

      “That requires some serious and unhurried thought.”

      Alas, except for a rare few, that is a commodity in critically short supply now days.

      Reply
  3. PseudonymousKid

    It’s way too early to tell. We need the benefit of hindsight to determine whether we broke the venerable Court by packing it with shills or even whether the current justices are shills. Not that they can’t just disguise that fact ala Posner. Give it ten more years at least to wait and see if one or more pulls a Stevens and switches sides before mucking it up even more with “fixes”. But patience and thought are in short supply, so pick a team and start shouting.

    Saying that I’m not particularly thrilled that the new justices are comparatively young and that sweet government healthcare will keep them alive longer, but that isn’t what you’re talking about so I’ll shut up about it.

    Reply
  4. Hunting Guy

    Dwight D. Eisenhower.

    “I made two mistakes and both of them are sitting on the Supreme Court. [Referring to Earl Warren and William Brennan]”

    Reply
    1. F. Lee Billy

      He also made a serious mistake in failing to call Sen. Joseph McCarthy, the deranged demagogue, on the carpet. Of that, there is no dispute. He was still a great general and a decent man, perhaps the last Republicant who was not a RHINO.

      The Earl Warren assessment was an achievement, not a mistake at all. The Golden Era of the Supremes. It has been downhill ever since.

      Surely, Amy “Commie” Barrett is less than qualified. Her testimony was wooden and lacking in anything substantive/informative. Elena and Sonia will be tossing this squishy softball around till the cows come home. Behind the curtain, they may torture her into submission and/or conversion. If ever there was a candidate for conversion,..?

      For those who may not be aware, the current Prez is a certified RHINO and a nutjob. His niece, a psychologist, just wrote a book about how unpredictable, irascible and mentally unstable her uncle was, and is today. (Interviewed on NPR last week.)

      The Supremes, largely irrelevant and out of touch, are likely to become even more so; until the pendulum swings back the other way. In the meantime, we give them no never Mind. Furthermore, we’re not reading any more books by guys named Jeffrey!?!

      Reply
        1. F. Lee Billy

          TT = Totally Trash?!? Well then, Mission Accomplished. A Splash a day keeps the doctor away. But not the lawyers. “Lawyers, guns and … Get me out of this.” (Warren Zevon.)

          Reply
  5. Steve King

    Two from Dr. Sowell:

    “Law of Unintended Consequences, which dictates that the actions of individuals and governments always have effects that are unanticipated.”

    and

    “The Principal Principle, which states that for every solution not carefully considered, one always creates more problems than one solves.”

    This is not an easy issue to resolve, if indeed it is resolvable at all. People favor change as long as the change works to their advantage. See the filibuster rules in the Senate for confirming justices. I would favor term limits for the judiciary branch or at least the Supreme Court because no one should remain in power forever and because classes of people are usually bad at regulating themselves.

    Reply
  6. Charles

    Emily’s math is correct.

    But she fails to mention that, until RBG was appointed, the ENTIRETY of the Supreme Court had been appointed by Republican presidents. From RBG to the present, Democrats have appointed four; Republicans five. Sounds pretty even to me.

    1992 called and wants its court-packing plans back.

    Reply
      1. Charles

        I apparently only acknowledged her counting as “math,” not whatever she made up about Senators representing half of a state.

        As for Justice White, I sit corrected. When I checked the Wikipedia, I only scrolled as far as LBJ. But 1 out of 9 still means that Republicans had appointed the vast majority of the justices by the early 1990’s. If the sky didn’t fall then, it’s probably not falling now.

        What’s causing consternation is the fact that Republican Presidents have nominated younger justices than Democrats. RBG was older than the four justices appointed before her. If she had been 10 years younger, she might have lived into a different administration.

        Appointing ever younger justices is not a good course to take. But if you really wanted to limit the influence of judicial appointments, what if Congress established a minimum age for appointments?

        For example, age 35 for District Court, 45 for Courts of Appeal, and 55 for SCOTUS.

        A high minimum age would create more vacancies, through retirement or death, without eschewing the benefit that lifetime appointments supposedly have on the integrity of decisions.

        Reply
  7. Eliot J Clingman

    The best way to limit the supreme court would be for congress to get it’s act together and draft laws carefully and precisely, and so leave less wiggle room. I’m not holding my breath.

    Reply
  8. Jake

    As long as there’s a ‘tyranny of the majority,’ the opposite must also exist. So yes, it’s broken. It is the highest court in the land, and it has been hijacked to reflect the twisted will of one Senator and his sycophants.

    In my humble opinion, the court can only be considered ‘not broken’ if it accurately reflects the entire population’s politics. In other words: a slight advantage to the left.

    For those that doubt there are already shills on the court, you need to look no further than Clarence Thomas’s history when voting on issues related to his former employers or his wife’s clients. A man of integrity would recuse himself from these cases to avoid the perception of conflicts to protect public faith in the institution. And before you go there: A few meaningless dissents with his fellow conservatives do not make him an independent thinker.

    Reply
        1. Miles

          You are adorably clueless. Do you really think Scott’s concern is that you take his reply seriously? Does it concern you that your comments range from quarter-baked to wholly incoherent to anyone but you? Why would you because you are the center of everyone’s universe and the most important thing in the world to everyone else here is what you, Jake, have to say. Fucking adorable.

          Reply
            1. Guitardave

              Wow! Now that’s what I call some Library of Congress level commentary, right there. Primo shit, baby!

  9. Sgt. Schultz

    We’re watching in real time the evisceration of our last credible institutions by a bunch of fools enraged by the repugnant Trump. It would be one thing if he nominated Ivanka, or god forbid, Judge Jeanine, but the justices he appointed our credible even if not our cup of tea. Each was a circuit judge before nomination to SCOTUS. These aren’t just random hacks off the street, despite what the woke believe them to be.

    Without at least one credible institution, we’re left to anarchy or revolution. I say wait and see. I suspect, as I think you do, that they will recognize the critical value of institutional legitimacy, even if every decision isn’t to our liking. Hell, we’ve been critical of SCOTUS for a long time, so why should it stop now?

    By the way, these TT comments are ungood, as in most people either lack basic reading comprhension or are incoherent (Hi Jake). Maybe TT has run its course.

    Reply
      1. F. Lee Billy

        Sure you are, Dr. Faustus. Terribly disappointed. You are reaching for the Tylenol as we speak. However, one thing is certain: You, and only You, are making the Blawgosphere great again. Ha! And I do not mean Maybe!

        Reply
      2. John Barleycorn

        Would you like to go through Big Boy Brett’s shadow docket concurrence citations from yesterday line by line or are you just in the mood for a summary?

        Reply
    1. Jake

      “…but the justices he appointed our credible even if not our cup of tea.”

      I disagree. Barrett is the most inexperienced person nominated to the Supreme Court since 1991 when President George H.W. Bush nominated Clarence Thomas.

      Reply
    2. PseudonymousKid

      Dear Wise Ole Sarge, what would you have to complain about on behalf of Pops if it weren’t for comments not meeting your high standards? Your put-downs aren’t anywhere near his. And thanks for introducing the idea of Justice Trump or, perish the thought, Justice Kushner in my mind. It’s repugnant. I’m glad we aren’t there yet.

      Reply
  10. Anonymous Coward

    My impression is that the current “problem ” with the Supreme Court could be solved by Congress actually legislating rather than virtue signaling and bloviating. All of this hand wringing over Roe v Wade wouldn’t have happened if there had been an actual statute saying abortion is legal but that never happened. The courts are supposed to be the referees, not the players.

    Reply
    1. Dan

      In a better world, Congress would have correctly realized that abortion isn’t properly a federal issue and stayed out of it.

      Reply
  11. Stan Wolczyk

    I’ve spent most of my adult life as an electronics technician, I’ve learned basic questions to ask to diagnose problems.
    The first, “Is the system working as designed? ”
    If the answer is affirmative then no fixing required.

    When it comes to the “system” of the Supreme Court, it appears to be working as designed.

    Reply
  12. Bear

    It isn’t the Supreme Court’s job to what Congress is unwillingly to do. But this “controversial” appointment of Barrett seems one more step towards not just a unitary executive, but presidency.

    Reply
    1. Bear

      This comment isn’t nearly nuanced enough and I apologize for it. I was just trying to suggest that voters are responsible for the government they get.

      Reply
      1. SHG Post author

        I suspect you’re saying that we need to elect better presidents than complain about not having a Supreme Court that saves us from bad ones.

        Reply
  13. SamS

    As I wrote before: the Supreme Court and the nominating process do not need reform. The Senate needs reform which is what every other November is for.
    The only possible thing that would make the Supreme Court better would be for them to decide each case the way I want them to.

    Reply
  14. John Neff

    As an outsider it appears to me that confirmation hysteria is caused by the fact that old decisions can be revised so they are not really final. I don’t see any reason to change the procedures and confirmation hysteria is boring and people may get tired of it.

    Reply
  15. cthulhu

    Regarding the future of SCOTUS, Chesterton’s Fence seems apropos. Actually, Chesterton’s Fence is apropos to the entirety of the progressive program, not that any of their ilk have the wit to understand the concept.

    Reply

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