History Called This Supreme Court Three Times: Three Times It Failed to Answer. The words at the front of this building are not ringing true.
A Unique Institution
The Supreme Court is a fascinating institution. Filled by people with lifetime appointments (more on that later), it represents the best and the worst of the American experiment. It has challenged us to be our best (Brown vs. Board of Education, for example). It has also reinforced the worst in us (Plessy vs. Ferguson, for example).
It has, regretfully, done more of the latter in three modern decisions that have immeasurably harmed this country . These decisions have lessened us as a nation and as a government. The implications are deep and long term.
Strike One
Bush v. Gore.This decision was the beginning of the end for this court’s standing as a pillar of American jurisprudence. The court has a long history of swinging conservative or liberal. Nevertheless, it has generally avoided being an overtly political institution, with deep splits based on party. Bush v. Gore put an end to that in the modern era. The decision was premature and blatantly political. There were still processes to run at the state government and courts level, but the case was rushed to the Supreme Court. They took the bait.
Worse yet, they made the decision on a 5-4 basis. To make such a decision with such profound implications by a 5-4 vote was short sighted and cynical. The nation could not sustain a much longer fight on this election. But a few more days of state level action could have resolved this at the right level, whatever the outcome.
This decision had all the ear marks of a high jacking of process for political gain. It also began a trend of this court losing its standing as a trusted arbiter for America.
Strike Two
Citizens United v. Federal Elections Commission. The Court had a rare opportunity to strike a blow for citizen-based democracy. They chose to ignore it. In one of the more extreme decisions of the Court, they decided that money – all money – is free speech. That this means some people have a HUGE voice and others are drowned out did not matter to the court majority.
This decision ushered in blatant and gross government for sale to the highest bidder. It paved the path for secret donations of unlimited funds. It made a bad system worse by orders of magnitude.
Campaign finance has always been a tricky legal issue, as it should be. There are conflicting principles and important nuances involved in such matters. But this decision blew past all that and gave a seal of approval to all that is wrong and corrupting about campaign financing in America. It is difficult to imagine a worse decision with more foreseeable outcomes.
Strike Three
Gerrymandering. Rucho v. Common Cause (NC) and Lamone v. Benisek (MD). The Supreme Court has a long history of not engaging in fights over gerrymandering. Still, these were two blatant cases, one each by Republicans and Democrats. These cases gave the Court an opportunity to set sorely needed standards. The hope was that this would resolve with Chief Justice Roberts siding with the liberals and moderates. Instead, he wrote the majority opinion allowing gerrymandering at whatever level any state legislature wishes.
Not only was this outcome disappointing, it was a singularly badly written and intellectually lazy decision by Roberts. In essence, he said this is all bad stuff, but we can’t figure out how to measure it. We see no role for the federal courts in these matters. Nothing castrates “one man, one vote” as much as gerrymandering. Yet the Roberts court sees no role for the courts in making it right.
It was a shameful and short-sighted decision. Political Science has made great strides in recent decades defining and framing gerrymandering. The “we cant figure it out” argument by Roberts was pathetic.
Justice Kagan’s dissent, on the other hand, is one of the best, most articulate, and most correct such dissents seen in a long time.
“For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities….”
“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote. “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”
Read her powerful and impassioned dissent at this link. https://slate.com/news-and-politics/2019/06/kagan-dissent-partisan-gerrymandering-rucho-common-cause.amp
What’s Next?
Three things seem obvious.
One, the Supreme Court has made its stand abundantly clear. When citizens knock on the court’s door seeking electoral justice, no one will answer. The federal courts will offer no justice, no matter how blatant the offense.
Two, citizens need to focus at the state legislature and state courts level to seek justice. These are, in many cases, the very bodies that gerrymandered in the first place. We need to pay as much attention (and work and money) to local and state elections as we do to national elections. Much of what hurts citizens by governmental action (or inaction) happens at the state legislature. This has always been true. We need to acknowledge that and apply ourselves.
Eight states use commissions to draw maps to treat both parties fairly. Voters in Colorado, Michigan and Utah chose that route last fall. Missouri and Ohio voters approved other changes. In some of these, Republicans are trying to gut the changes voters chose overwhelming. That fight continues.
In some states (including my own), citizens don’t even have the right to put such an initiative on the ballot. Only the legislature can do that. Yet another fix that needs enacting.
Three, these issues bring to the forefront proposals for Supreme Court reforms. Some candidates, including some I generally support, have proposed packing the court. That strikes me as a useless approach, subject to abuse.
There is nothing magic about having nine justices – we have had other numbers at other periods in time. But changing the head count because we do not like the outcome of cases seems inappropriate.
A more useful proposal is to limit Court appointments (say, 14 years). This makes changes in Court membership more predictable and more even flowing. Setting up a process similar to that used for the Federal Reserve sounds about right. This would avoid the random craziness of one president having no appointments and another having 3-4. The nation is not well served by such games of chance.
An age limit might also be useful but would be much more difficult to do well. The term limit would cover this ground as a byproduct.
The abuse of power by Mitch McConnell in refusing hearings for Merrick Garland should never happen again. That door needs to be shut forever. It was a blatant abuse of power and as unconstitutional an outcome as one could imagine. I do not know the best way to prevent this recurring, but never again, please.
We have work to do, people. Let’s get to it. State legislators, we are coming for you.
Bill Clontz
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