The case for optimism about the Supreme Court
The case for optimism about the Supreme Court
The case for optimism about the Supreme Court.
When you cover this Supreme Court for a living, it is tempting to fall into despair.
The Court has spent the last few years relitigating long-settled fights over abortion and affirmative action. It consistently rules that the rights of LGBTQ Americans, women using birth control, and even people who don’t want to catch a deadly disease must give way to the whims of the Christian Right.
Under its three-year-old Republican supermajority, the Court took a decidedly post-legal turn. It routinely relies on fabricated legal rules, such as the so-called major questions doctrine, to veto liberal policies like President Joe Biden’s student loan forgiveness program or to undermine environmental protections.
Its guns decision in New York State Rifle v. Bruen (2022) is an incompetent train wreck, which has baffled lower court judges and produced appalling results — including an appeals court decision holding that a law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional.
And yet, despite all of this, I am far more optimistic about the future of the United States than I was a year ago, and a big reason why is the Supreme Court’s behavior over the last several months.
When the Court opened its latest term last October, my level of alarm was about a 13 out of 10. The GOP-appointed justices had just completed an orgy of conservative grudge settling, including its decision overruling Roe v. Wade. Worse, the Court planned to hear new cases that could legalize racial gerrymandering, gut Medicaid, and potentially even destroy US democracy altogether.
A little less than a year later, my level of alarm is down to a nine. The Court’s last term gave anyone to the left of Brett Kavanaugh no shortage of outrages, but it left Medicaid intact. It shut down an argument that many of Donald Trump’s nativist appointees to the lower courts used to seize control of federal immigration policy. And, on the crucial issue of voting rights, the Court handed down two decisions that give real hope that, no matter how else these justices might interfere with federal policymaking, they will preserve the people’s right to elect officials that the justices themselves do not want to see in office.
I want to be precise about the argument that I’m making. If you are angry at the Supreme Court, you are right to be angry. Many of this Court’s decisions are completely lawless — such as the Court’s recent decision in Biden v. Nebraska (2023), which ignored a federal law that unambiguously authorized Biden’s student loan forgiveness program. They demand anger. And that anger isn’t just righteous, it is useful.
But I also want to counsel against despair — that is, I want to counsel against the absence of hope.
The Court’s GOP-appointed majority is starting to draw some fences around the conservative legal project. The Court appears unwilling to attack entrenched parts of the American welfare state. It smacked down a Trump judge who attempted to ban the abortion drug mifepristone. It has rejected legal arguments that would devastate the US economy or threaten its national security.
And, most importantly, the Court is now signaling that it may preserve America’s ability to hold free and fair elections (or, at least, to hold elections that are as free and fair as possible in a nation with an Electoral College and a malapportioned Senate).
If it holds to that, there’s a very real chance that liberals and centrists can defeat this increasingly unpopular Court the old-fashioned way — by consistently electing presidents and senators who will fill the Court with justices who will relegate the works of Samuel Alito to the anti-canon.
by consistently electing presidents and senators who will fill the Court with justices who will relegate the works of Samuel Alito to the anti-canon
There's no foolproof way to do this, though. After all, Alito and Thomas were nominated by the so-called "moderate" Bush family.
HW also appointed one of the reliably liberal justices of the past couple decades. That doesn’t happen any more. There will never be another Souter. All presidents, for better or for worse, will only appoint candidates that fit a specified ideology.
There will never be another Souter.
Unfortunately, starting with Clarence Thomas in 1991, Supreme Court justices nominated by Republican presidents were pre-selected by the Federalist Society.
The Court's reputation has steadily eroded since then.
The Bushes, especially HW, while terrible and extremely harmful to the world as a whole, were a part of the old guard that still felt the need to keep up the trappings of political balance even if they never really believed in it
Yeah, this article is a great example of psychological readjustment. The author has readjusted to goddamn Roe being struck down, to the extremely dangerous student loan ruling (George Miller wrote the bulk of the Heroes Act that authorized the forgiveness and he agree it was a proper use of the law--SCOTUS ignored the law and effectively rewrote it).
The Supreme Court is illegitimate and on the precipice of being entirely fucked. Starting with the stealing of Garlicks seat to the appointed of no experienced and supremely unqualified Barrett to its now dangerous and improper rulings, its legitimacy has been shredded.
Yeah, this article is a great example of psychological readjustment.
Indeed, the court will throw a few crumbs here and there to try to appear legitimate, but McConnell had previously made clear his intent to rig it (which, of course, he did).
Now hang on. I don't like them much, but they are legitimate. Due process was followed. Nothing says you have to yave experience and what not. When you start saying illegitimate, you sound like trump. Be better than him please. We can't let him readjust our expectations for how discourse should be discussed.
The Supreme Court is an outdated unethical corruption ridden cesspit that needs to be excised like a cancerous lesion.
I have the beginning of a thought. It would require a constitutional amendment.
How about Justices are still appointed just like now, for life just like now, but have to stand for a "retain" vote every ... four years? At the midterms? To lose the retain vote and be removed from office would require a 2/3 vote of the entire nation's popular vote. If a Justice is removed by this vote, the sitting president nominates someone to the seat, and the vacancy is filled by the normal process - maybe with a six month time limit between "empty seat" and "confirmation"? I know that last bit could be abused, just trying to think of a way to fill the seat in a timely fashion.
On the campaign trail, Buttigieg proposed reforming the court to 15 members, 5 appointed by Republicans, 5 by Democrats, and 5 appointed by the rest from the lower courts. "Balanced Bench" would be the technical term
I think it sounds like a good way to make the court as a whole less political.
I admire the optimism, however I'm afraid it wouldn't have any more of an impact on the present state of things than...a simple majority vote every two years
If you consistently vote for democrats then you'll maybe get a few "centrist" judges on the court that might make a small difference decades from now. Great.