Ch 2.4 | ⚖️SCOTUS
So let's talk about the Supreme Court!
In 1803, Chief Justice Chief John Marshall established the concept of “judicial review” when issuing the unanimous opinion in the landmark case Marbury v. Madison, granting the Supreme Court the authority to determine the constitutionality of actions taken by the other branches of government.
That means the Constitution means whatever the Supreme Court says it means. But as norms, technology, medicine and more aspects of life have evolved, the original language and meaning of the Constitution have become so manipulated that their original meaning can be argued from almost any perspective and it’s ultimately up to the court to validate one of those perspectives.
📘 A brief primer on the Supreme Court
Article III of the Constitution establishes the federal judiciary, with Section I stating:
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.
Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789, creating broad parameters for the federal court system. Congress also has the authority to determine the number of justices on the Supreme Court.
Like all federal judges, justices are appointed by the president and confirmed by the Senate. They, typically, hold office for life. The salaries of the justices cannot be decreased during their term of office. These restrictions are meant to protect the independence of the judiciary from the political branches. Unfortunately, it hasn't exactly worked out that way.
Article III, Section II of the Constitution establishes the jurisdiction (legal ability to hear a case) of the Supreme Court. The court has original jurisdiction (a case is tried before the Court) over a limited range of issues, e.g., suits between two or more states and cases involving ambassadors and other public ministers. The court has appellate jurisdiction (it can hear an appeal) on almost any other case that involves a point of constitutional and/or federal law. Some examples include cases to which the United States is a party, cases involving treaties, and cases involving ships on the high seas and navigable waterways (admiralty cases).
Britannica does a good job summarizing the court’s process and history, but let me highlight this point about the court’s impact:
The opinions of the Supreme Court, including the dissenting opinions of individual justices, often have been considered epitomes of legal reasoning. Through these opinions, the court serves to clarify, refine, and test the philosophical ideals written into the Constitution and to translate them into working principles for a federal union under law. Beyond its specific contributions, this symbolic and pragmatic function may be regarded as the most significant role of the court.
📦 "Packing the Court"
Over the years, various acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10.
From 1789 to 1807 the court comprised six justices.
In 1807, a seventh justice was added, followed by an eighth and a ninth in 1837 and a tenth in 1863.
The size of the court has sometimes been subject to political manipulation; for example, in 1866 Congress provided for the gradual reduction (through attrition) of the court to seven justices to ensure that President Andrew Johnson, whom the House of Representatives later impeached and the Senate only narrowly acquitted, could not appoint a new justice.
The number of justices reached eight before Congress in 1869, shortly after the Civil War, adopted new legislation setting the number at nine, with one chief justice and eight associate justices, where it has remained ever since.
In the 1930s, President Franklin D. Roosevelt asked Congress to consider legislation (which it subsequently rejected) that would have allowed the president to "pack the court" and appoint an additional justice for each member aged 70 years or older who refused to retire.
👩⚖️ Today's Supreme Court
Popular dissatisfaction with the Supreme Court today is related to the increasing perception of the court as “conservative” rather than “middle of the road,” reflecting the belief that judges should be neutral umpires who just “call balls and strikes.” If the Supreme Court were to devolve into just one more political institution, in an age of extreme partisanship and polarization, the fear goes, the guardrails supporting our constitutional system would fall away.
It’s not an unreasonable concern. But, as discussed below, the idea of an apolitical court is a fairly recent development. How can one even expect that the court would be apolitical when justices are appointed through the political process of a congressional hearing? This fact was never more evident than the GOP’s relentless pursuit of a conservative court to overturn Roe v. Wade. Republicans’ hypocrisy was on full display during Senate confirmation hearings. In March 2016, Senate Majority Leader Mitch McConnell tried to justify denying a vote on President Barack Obama’s nomination of D.C. Circuit Judge Merrick Garland to replace Justice Antonin Scalia:
“All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”
In 2019, given the lack of any “long-standing tradition” but anticipating the possibility of an election-year vacancy, McConnell fabricated a different history to justify treating a Trump nominee differently from Obama’s. He argued that:
[y]ou have to go back to … 1880s to find the last time … a Senate of a different party from the president filled a Supreme Court vacancy created in the middle of a presidential election. That was entirely the precedent.
When that anticipation became reality with the death of Justice Ruth Bader Ginsburg, he offered a slightly different excuse:
Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
The National Review claimed a norm:
when their party controls the Senate, presidents get to fill Supreme Court vacancies ... [but] when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees.”
Writing in The Washington Post, conservative pundit George Will called out the hypocrisy in a way that is hard to dispute:
In 2016, slathering on populist rhetoric (about “the American people” having a “voice”), they proclaimed that no Supreme Court nominee should be confirmed in a presidential election year. Now they assert, without pretending to have an argument: Oh, never mind, because unlike in 2016, the Senate majority and the president are of the same party.
Those maneuvers and others allowed the GOP, while Donald Trump was president, to bend the court towards its conservative view and ensure a far stricter interpretation of the Constitution for the next generation.
I am very torn on this issue. Not on the hypocrisy of the GOP, but on how to best interpret the Constitution in the modern world. I have never quite shaken my libertarian beliefs, nor my own desire for less overreach by the federal government. In fact, my interpretation of the Constitution tends to agree with that of states’ rights advocates.
Unfortunately, unless and until we fix the system that elects our leaders at the local, state and federal level, I find myself in the uncomfortable position of feeling like we need a bit of overreach on the part of the federal government when it comes to issues of social equity, fairness and economic inequality.
As of June 2023, according to Bloomberg News:
The US Supreme Court’s Republican-appointed supermajority wielded its power broadly this week, striking down laws and erasing long-held legal precedent supported by [a] large percentage of Americans. On Thursday the court effectively barred universities from using race as a factor in university admissions, marking the start of a new era in higher education. The next day, the same six justices tossed out President Joe Biden’s plan to slash the student debt of more than 40 million people, rejecting one of his signature initiatives as exceeding his power. They also ruled that a Christian website designer’s First Amendment rights allow her to discriminate against same-sex customers. … But the broader issue, Noah Feldman writes in Bloomberg Opinion, is that the supermajority “is going to keep striking down liberal executive branch initiatives it doesn’t like.”
I do share some of these concerns. I do see the Supreme Court setting us back on a variety of social justice advances, including women's rights, which troubles me deeply. I'm also very concerned about recent decisions involving the separation of church and state as well as on abortion.
That said, I want to be clear that this Supreme Court is not some dangerous, unhinged, "MAGA Supreme Court." McConnell wrote convincingly that this framing would be misleading, noting that just 9% of the court's 57 cases this term came down to a 6-3 ideological split. Nearly half (45%) of the court’s decisions were unanimous; 16% were decided by a majority coalition of three liberal justices joined by Republican-appointed justices. Justice Brett Kavanaugh sided with Democratic-appointed Elena Kagan more (81% of his votes) than he did with Clarence Thomas (61%). While the impact of the court’s rulings can vary case to case, the court is simply less ideological and more cooperative than many liberals believe.
😤 Politics and the court
For those of us who fear the court is becoming just another partisan institution, that fear is only partially justified. Sadly, it isn't a new phenomenon! Like it or not, for the better part of American history, the Supreme Court has been a partisan and political institution. In the past, justices sought elective office and counseled partisan allies. Some even coveted the White House themselves. The justices who sat on its bench were once and future elected officials, presidential aspirants, and even former presidents.
Whether the Supreme Court should keep politics at a far distance is one question. Whether it historically did is another. I suppose given that Congress established the Supreme Court, the justices are chosen by the president, the Senate approves those nominations, is it so surprising that the court is tainted by politics?!?
👍 A critical role
Regardless of your political perspective, the Supreme Court plays a very important role in our constitutional system of government.
As the highest judicial body in the land, it is the court of last resort for those looking for justice.
Due to the power of judicial review, it plays an essential role in ensuring that each branch of government abides by the limits of its own power.
It protects civil rights and liberties by striking down laws that violate the Constitution.
It sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of minorities.
In essence, it was shaped to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion and due process of law.
Sadly, it is these very values that are being called into question today and if the court loses all legitimacy it could jeopardize an important check and balance in our carefully crafted republic.
😇 A code of ethics
I would hope that we can all agree that there should be stringent enough rules, and clear enough ethical codes, so we actually know when a Supreme Court justice is ruling on a case in which a close friend or gift-giver – or even the justice him- or herself – has a strong interest.
If you've been following the news, this court has faced some scandals. There have been a series of stories written about Justices Clarence Thomas and Samuel Alito receiving gifts and luxury travel accommodations from wealthy conservatives who were connected to cases that the court had heard. Justice Sonia Sotomayor was the subject of an Associated Press report that detailed how her staff routinely prodded libraries, universities and other public institutions to buy her book ahead of speaking appearances.
To address this concern, Democrats in the Senate have proposed a bill, dubbed the Supreme Court Ethics, Recusal, and Transparency Act, which would require stricter financial disclosures for justices, increase recusal requirements, and give the court 180 days to adopt and publish a code of conduct that would also allow the public to submit ethics complaints. Any ethics complaint would then be reviewed by a randomly selected panel of lower court judges. The bill would also create a three-judge panel to review motions for recusal.
I hope we can agree that Alito and Thomas don't have to be corrupt to be wrong. They can each be a totally honest independent justice who did nothing more than go on a fishing trip with a friend. The standard they have to work under holds that they must avoid even the appearance of impropriety. The highest court in the land must leave no questions about its impartiality. Any favor that a reasonable person could construe as biasing a justice’s judgment should be cause for recusal. Maybe I'm delusional, but I like to think of myself as pretty reasonable. And when you get into some of the details …
Thomas accepted gifts in the late 1990s and early 2000s from Harlan Crow valued in the tens of thousands of dollars, including private airplane flights and a Frederick Douglass-owned Bible. Crow Holdings was involved in a 2004 high court petition. Alito accepted a free fishing vacation in a remote Alaskan village in 2008, which included a ride on Paul Singer’s private plane. Singer’s investment group, NML Capital, then appeared in court petitions in each of the subsequent six years.
Do you think it is unreasonable to suggest that maybe Alito and Thomas should’ve recused themselves from those cases?
What we need are clear standards about what requires recusal and a better way to review recusal claims, as well as expansive financial disclosure rules.
All other federal courts operate under a central ethics code administered by the Judicial Conference of the United States, which states:
A judge should avoid impropriety and the appearance of impropriety in all activities.
Public trust in the Supreme Court as an institution has been fading for years, and calls for a clearer ethics code should be implemented.