Today’s Radical Supreme Court

Fred Wertheimer’s Weekly Note | July 6, 2023

The Supreme Court is a seriously damaged institution.

A recent Quinnipiac poll found that just 30 percent of voters approved of the Supreme Court, the lowest approval rating since they began asking this question. Nearly 7 of 10 voters said they believe the Court is “mainly motivated by politics.”

On top of this, the failure to comply with normal ethical practices by Justices Clarence Thomas and Samuel Alito has only added to the Court’s credibility problems.

The Court, which has been taken over by a radical, conservative majority, is losing its legitimacy as the arbiter of our Constitution and our nation’s laws.

Ever since Marbury v. Madison in 1803 established the principle of judicial review, making the Court’s opinions the final word on constitutional issues and the meaning of our laws, the Court has been viewed as an independent, non-political arm of our government.

No more.

In recent years the Court has discarded core principles of jurisprudence and moved further and further away from the mainstream of American life.

For example, two of its most impactful and controversial decisions were Citizens United, which in 2010 struck down the federal ban on corporate campaign spending in elections and opened the door to Super PACs and dark money, and last year’s Dobbs decision, which overturned Roe v. Wade that provided the constitutional right to abortion.

In both cases, the Court ignored the longstanding principle that precedents from previous cases should be applied in later similar cases. There was no legitimate basis for the Court to discard decades of precedent in either case. The conservative majority simply acted on the assumption they could do whatever they wanted, without any boundaries.

The conservative majority also ignored another fundamental principle – that Court opinions should aim to rule on the narrowest possible grounds and should not be used to make unnecessary sweeping decisions.

In two decisions issued in the closing days of this term, Chief Justice John Roberts seemed to recognize that the Court is moving too far away from the American people.

In Moore v. Harper, the so-called “independent state legislature” case, the Court rejected the fringe theory that state Supreme Courts have no power to review a state legislature’s decisions about federal elections to ensure they conform to the state’s constitution.

The fact that this Court did not embrace a fringe legal theory is certainly welcome, but it should not be mistaken as a move toward “moderation” by the Court.

The outcome in the case should have been clear from the start.

In 2019, in the Rucho case, the conservative majority ruled that while federal courts do not have jurisdiction to decide claims of partisan gerrymandering of congressional seats, state courts could – an implicit rejection of the “independent state legislature” theory.

Nevertheless, just four years later, three of those same Justices – Thomas, Alito, and Neil Gorsuch – dissented in Moore and would have stripped the ability of state courts to review legislative redistricting plans.

The second decision this term, Allen v. Milligan, upheld section 2 of the Voting Rights Act in a racial gerrymandering case. This was a pause from the Court’s shredding of the Act, begun in 2013. The Court has done grave damage to the Voting Rights Act and, despite this victory, the Act remains in danger of being completely destroyed.

There is every reason to believe that the Court majority will continue making decisions based on their ideological and political views, and the warped belief that they can ignore past decisions whenever it suits their fancy.

This has prompted growing calls for reform of the Court such as expanding the number of Justices or placing term limits on the Justices.

The last time a serious effort was made to expand the Court occurred during Franklin Roosevelt’s presidency. He was ultimately blocked by Congress, but the public uproar led Justices to back off their efforts to kill the Roosevelt agenda.

Today’s Justices may not care about public rejection, but their ideological and partisan opinions that have wandered dangerously away from mainstream jurisprudence, and their blatant disregard for basic ethics, put the Court’s integrity and credibility in peril.

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Fred’s Weekly Note appears each Thursday in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s and other recent newsletters here. And, subscribe for free here and receive your copy each week via email.