The President's Column: Curbing the CourtSeptember 1, 2022
The U.S. Supreme Court is no longer fit to uphold democracy
No matter how young or old we are, we Americans have grown up hearing quite a few myths about our democracy that very often proved to be false.
For example, we are led to believe that it is the majority of voters who decide who gets elected to office. In fact, two of the four Presidents in this 21st century were “elected” with a minority of votes, thanks to the slavery-era Electoral College. Or take the Senate, where tens of millions more votes go to Democrats, but currently half of the seats are held by Republicans. This is because states like Wyoming have two Senators—the exact same number as California, whose population is 50 times bigger.
Another enduring myth has been that the Supreme Court is impartial, that the Justices “only call balls and strikes,” in the words of Chief Justice John Roberts. Now we come to find out that the majority of the Court—none of them elected, and all appointed for life—seem determined to fix every game in favor of corporate power and white supremacy, and against the democratic will. As the Republican Party has increasingly become a white supremacist, authoritarian institution, it’s become equally clear that the Supreme Court majority has become the far-right party’s judicial arm.
Republicans are a minority party—they won the popular vote only once in the past eight presidential elections. Their near equal representation in Congress is only achieved by a combination of GOP gerrymandering and the unrepresentative nature of the Senate. Republicans have focused on fixing the courts in their favor, too, so that any progressive legislation passed by a Democratic Congress—voting rights, environmental protection, gun control, etc.—can be ruled “unconstitutional” by an unelected collection of right-wing Justices.
While there may have been brief periods when the Court has ruled to expand voting rights, for most of its history, it has been the upholder of corporate rule and white and male privilege. Of the 117 justices who have served on the court, all but five have been males. Only two Black men, one Black woman and one Latina have served as justices. Every single one of the 17 Chief Justices has been a white man.
The six far-right Justices who make up the Court’s majority claim to be “originalists,” that is to say that they interpret the Constitution as the “founding fathers” meant it to be. Of course, the Constitution, nearly two and a half centuries old, was written entirely by white men of property (usually the “property” being slaves), the only ones entitled to vote at the time. The founders also agreed, for taxation purposes, that African slaves would be considered three-fifths of a person, a condition reaffirmed by Supreme Court rulings until the 14th Amendment after the defeat of the slavocracy in the Civil War. The 14th Amendment giving “equal protection under the law” to all persons, including former slaves, was a defeat for the “originalists” of that era.
The justices come onto the Court with their own ideological biases. They rule in accordance with those biases, not as objective interpreters of centuries old documents. Thus, in a previous era, a Black man or woman was three-fifths of a person, whereas today embryos are considered full persons—as are corporations.
In 2000 the court intervened in the Presidential election to ensure a Republican victory. With the Democrat Al Gore leading the Republican George W. Bush by 540,000 votes, the Court voted 5-4 to give the election to Bush, canceling a recount underway in Florida that would have settled the matter justly. One of today’s nine Justices—Clarence Thomas—was on the Court and ruled for Bush.
And three of Bush’s lawyers— John Roberts, Brett Kavanagh and Amy Coney Barrett—are also now part of the ultra-rightwing majority on the Court. Kavanagh and Barrett were appointed by Trump, as was Neil Gorsuch, who got the seat that Republicans took by refusing even a hearing for President Obama’s nominee.
The Supreme Court has thus become a kangaroo court, one of the greatest threats to democracy rather than its protector.
Corrective measures—term limits, expanding the Court, impeachment of Justices that perjure themselves by claiming they would not overturn settled precedent like Roe v. Wade before voting to do so—are all available to a Congress, if its members prove to be courageous and committed to justice enough to use them.
1199 Magazine - July / August 2022