By Kenneth Tiven
For a Court theoretically above politics, the 6-3 conservative majority in the US Supreme Court has used ideology to overrule precedent and legal common sense. Chief Justice John Roberts wrote the majority decision in the recent presidential immunity case that gives Donald Trump protection for several felonious issues. This is from the lawyer who told his confirmation hearing 19 years ago that “judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them…they make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”
Two years ago, that same majority ended a 50-year-old ruling that was the basis of a national right to abortion by ignoring stare decisis, the legal doctrine of respecting precedent-setting decisions. The Latin phrase means “to stand by things decided”. Right-wing evangelicals in Mississippi had contrived a case specifically attractive to the new justices appointed by then-President Trump. The resulting anger of women and families in America brought all issues of family planning and women’s rights back to centre stage in America. For pregnant women, this change brought medical issues, often life-threatening, because of confusion about what a doctor can do when there is a medical problem. This withdrawal of a personal right to decide about an abortion grew into a movement that has helped Democrats win several statewide election issues and now is totally aligned with the efforts to defeat Trump’s re-election bid.
President Joe Biden has just put forward a plan to make changes in the Court. While he is not running for re-election, Vice-President Kamala Harris is and she agrees that the Court needs an overhaul. She is a long-time supporter of family planning. If elected, she will be the first woman to lead the USA. As a person of Jamaican and Indian ancestry, this will be applauded by many, but despised by the Trump MAGA voters who want the 78-year-old convicted felon again in 2024. The once proudly law-and-order Republican party is nowhere to be found.
Biden noted that the American people have lost faith in a Supreme Court that has junked longstanding legal precedents that protect civil rights, moving the country towards a theocracy overseen by a dictator. A White House statement noted that “recent ethics scandals involving some justices have caused the public to question the fairness and independence that are essential for the Court to faithfully carry out its mission to deliver justice for all Americans”.
Efforts to regain power within the Supreme Court gained speed and funding after Franklin Roosevelt’s three-plus terms as president, which dramatically changed the federal government’s relationship with the states and corporations. Dahlia Lithwick is a Canadian-American lawyer, writer and journalist who has covered the Supreme Court for years. She wrote: “The six-justice super majority that was groomed, financed, then foisted onto the Court in defiance of long-standing norms would indeed shamelessly and brazenly work to protect those interests.”
In 1982, in Ronald Reagan’s first term, the Federalist Society was created to push for federal judges who believed in textualist and originalist interpretations of the US Constitution. It raised money easily and, as Lithwick writes, methodically worked, believing this was a safety net investment against societal changes not desired by wealthy Americans. Lithwick says: “The Federalist Society plan worked, even as the lawyerly class slept warmly through it, comforted by the hopes and dreams of a John Roberts court that was conservative, sure, but not criminally insane.”
The name is a reference to the Federalist Papers written seeking colonial era support for a “united” States after defeating Britain in the 13-state War of Independence at the end of the 18th century. The papers did not advocate how the judicial system was to work, only that there be one fair to all citizens. Vice-President Kamala Harris, a lawyer, obviously understands this is the opening shot in the court issue, which, initially a big-deal issue, is unlikely to bring any meaningful change.
However, this Court’s approval rating is at a record low among people of various political persuasions, so this is a good time to start talking about it. Revelations about Justice Clarence Thomas taking endless gifts from rich friends with business before the Court and Justice Samuel Alito’s increasing religious zeal have cast doubt on their fitness. Reform of the Court will be a post-election issue only if the Democrats win because they recognize issues with ethics, homelessness, and administrative power, all of which have been court cases in the past two years.
The United States Constitution was written at the 1787 Philadelphia Convention and was ratified through a series of state conventions held in 1787 and 1788. Since 1789, the Constitution has been amended twenty-seven times, including the ten amendments of the United States Bill of Rights, and three post-Civil War Reconstruction Amendments, often referred to as the second Constitution. Lessons gained during wartime with a weak central government necessitated the need for a new Constitution.
The writers didn’t waste ink and quill pens on Article III, which created a federal court system because Article III creates the judiciary in its Section One with just 67 words: 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.
Shortly after taking office in 2021, Biden had created a Presidential commission on the Supreme Court. The 34 bi-partisan members submitted a nearly 300-page report by the end of that year. The legal experts were tasked to provide analysis of the “principal arguments” for and against, “including an appraisal of the merits and legality” of various proposed reforms to the High Court, such as changing the size and composition of the Court or reducing its power in the constitutional system. The commission was never intended to offer recommendations, commissioners say. The co-chairs repeatedly told members that their mandate, per the executive order, was to provide analysis, not advice. “Ultimately, it looks like a policy report,” said one member, who spoke on condition of anonymity, “I am not sure how useful it will be as a way of guiding and providing a path forward.” Now, towards the end of his term, President Biden brings the issue back on stage, especially because recent Court decisions make it a suitable election issue from his perspective.
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels