And that is why it's a joke to pretend that the Court is not legislating from the bench, or that regressives don't want it to. If it wasn't making political decisions based on personal politics, you'd never be able to predict where the justices will come out on a given issue, let alone get it right almost every time. Nor would all these groups on both the left and right as well as members of Congress, invest so much energy in fighting over these appointments. Indeed, you wouldn't even be able to use terms like 'conservative justice' or 'liberal justice'.
Which raises a pretty profound question. If this is a democracy, why are we allowing a group of people as few as five who were not elected, who basically cannot be removed unless they're caught stealing computer printers off the Court's loading dock or something along those lines, and who confer and decide in total secrecy why are allowing these folks to be the last stop in the making of national policy? Truly, the only thing more non-democratic than such a system would be a monarchy or dictatorship, and only because it would be one person rather than five.
Should we kill the Supreme Court, then? (I don't, of course, mean to literally take out its members, though in one or two cases I could perhaps be persuaded.) Of course, this will never happen any time soon because of the scope of constitutional change entailed. But the proposition is worth pondering. Is there any reason that we need the Court?
The United States has the essential structure of a governing democracy, though there are certain major caveats to that form that especially collectively render the whole rather dubious. Low levels of participation, a voter registration system that discourages participation, a completely broken campaign finance system, an Electoral College that can and sometimes does select the occupant of the most important office in the land against the will of the people these are all examples of key factors which hollow out the democracy part of American democracy. Likewise, without question, is decision-making by unelected, unaccountable and unremovable officials. In other parts of the world they are called dictators, or members of a junta. Here, we dress them up in black robes and call them Supreme Court justices.
There is one possible exception to these objections, by which the Court could be valuable within the context of an otherwise democratic system, and indeed, the Founders may have had this mind when they created the institution. Democracy meaning rule by popular will is all well and good, except that the public is all to often stupid and cruel, and sometimes ferociously so. Politicians, being politicians, will unfortunately tend to follow wherever the public leads, rather than lead the people to a more enlightened place (and, of course, when these political figures do lead, all too often it is into the darker quarters of human society, for the sake of political expediency). What all this means is that out-groups may have a very rough ride of it. Why should accused criminals get due process? Just hang 'em! Why should blacks or women get equal treatment before the law when that will only diminish the spoils enjoyed by majority white males? Why should communists or Jews (and what's the damn difference, anyhow?) get free speech rights? They hate America!
Left to their own devices, it will be a rare Congress or president who will stand up for the right to a fair trial for an accused child murderer. Nor will you see them trying to explain the philosophical nuances behind anti-discrimination rulings, when the punch line still remains that a voting constituent is losing his job. This is where a Supreme Court that is insulated from political firestorm can potentially stand for principle, without risk of backlash. Undoubtedly, this is why the Founders gave them lifetime appointments.
The Warren Court of the 1950s and 1960s was a keen example of this very notion, but also a rare one, and also in regressive circles, especially in the white South a hated one. A federal judiciary that will uphold the rights of unpopular out-groups when elected officials are acting as profiles in cowardice sounds like a pretty good idea to me. But, of course, regressives hate that notion, just as they despised the Warren Court, and that brings us back to the current cycle in which we find ourselves, where the Court has become highly politicized and has been subject to a fairly successful attempt by the right to load the bench up with Neanderthals, particularly young ones who can spend the next forty years of their lives wrecking the country, completely unchecked.
Which is pretty much where we're at today. With the uncommon exception of those moments when Anthony Kennedy decides to live up to the meaning of the title "Justice", this Court decides with regularity in favor of corporations over plaintiffs, in favor of government power over civil liberties, and in favor of executive power over the Bill of Rights and the checking and balancing of separated powers. Woo-hoo. Cool, huh?
As if that isn't sobering enough, consider what would have happened if George W. Bush had had one more appointment, replacing a moderate on the Court (one of whom Justice Stevens is about 90 years old). That would have locked in a solid five-vote majority for the Dark Side, and with mostly young justices in the bloc, to boot. That is, a gift of regressive politics that would have kept on giving for another generation or two, regardless of who was getting elected to Congress or the White House.
For that matter, consider if Reagan and his worshipers had gotten what they originally wanted either in the person of Robert Bork, or in an Anthony Kennedy who wasn't so disappointingly 'liberal'. Or if David Souter hadn't turned out to be the grand disappointment to scary regressive monsters that he did. In any of these scenarios we would have had that solid five (or even six) vote majority of evildoers, and we would have had it for quite some time now. The current Supreme Court has been pretty bad, not least including Bush vs. Gore, which metastasized its disastrous politics all over the world. But, believe it or not, it could have been a lot worse, and it well may be yet.
Which brings us back again to the question, why have such a court at all, or at least a court with such powers?
Given that the potential benefits described above have historically been rarely manifest, given the grim alternative of an untouchable fount of regressive policies lasting for decades, and given the fundamentally undemocratic nature of such a system, I say, let's not. I'd rather take my chances on a bunch of knuckleheads in Congress and the White House who at least have the virtue of being replaceable.
I say, kill the Court.
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