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?
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