I’m proposing Congress change the rules of how the Court operates around decisions in which they invoke the Constitution to change or strike down laws
Won't work. Who's going to decide what is and what isn't a 'Constitutional' issue? Anyhow, Corruption is the 800 lb. Gorilla in the room and you know what they say... You aren't done dancing until the Gorilla is done dancing. Thomas is a two-bit so-and-so; so was Scalia. I think Scalia had a heart attack at that billionaire donor's ranch with a 16 year old girl on top of him but, that's just me. 'Compromat' is alive and well in all of this. Urban legend has it that before 9/11, Dick Cheney said, "'What we really need is another Pearl Harbor.' And, voila." I believe it. I was doing business with Halliburton Brown and Root and right before we invaded Iraq, they were 120 days out, a slow pay on millions in receivables they owed my company. We were nervous; H, B and R had gone on an acquisition binge and was cash poor. Well. We know what happened next. I don't care how you structure the Supremes, corruption has and always will be the underlying problem.
Wow, article III, section 2. It has been there all the while, yet our (cowardly) congress and executive, when it has been in control of Democrats never thought to use it, but first the Senate leadership needs the cajones to kill the filibuster.
Imagine if you were on the Titanic and had foreknowledge an iceberg was 20 miles away and would literally sink the ship you were on?
Democracy is literally just a few miles from that iceberg.
And democrats are driving the ship.
Agree with Thom SCOTUS should be nonpartisan and free from political party divisions. But being realistic the powers that be are perfectly content with the corruption, influence peddling and extreme right wing partisan rulings especially if a billionaire with a particular agenda is behind it. For example a news article regarding Gorsuch just popped up about a lucrative real estate deal with a major corporate law firm who has had suits before the supremes with favorable
rulings that Gorsuch sided in favor of. He apparently didn’t disclose the name of the company who bought his share of the property. On top of the C. Thomas/Ginny corruption and A. Kennedy questionable issue with his son’s alleged banking/tRump shenanigans, rapy Kavanaugh allegations never fully investigated and (agree with Ginger on Scalia) now Gorsuch the court has some credibility issues and stinks. Definitely Ethics challenged
It is hard for citizens to understand that there are no ETHIC standards in the highest court in America. I believe that unless the Supreme Court is cleaned up, it should be disbanded.
What a terrific analysis and proposal! This needs to be shared and discussed widely!
Obvious that Scalia positing his ‘originalist’ screed never read the Federalist papers!
How ironic that the group that ‘owns’ the Extreme court is named the federalist society !
Thank you ! A monarchy indeed.
Some of these judges do act like royalty .
We need to return to the people the power to make their laws.
As for Congress right now , I cringe when i look at behaviors that have become acceptable.
I do not believe they represent the people. As far as I’m concerned, people who participated in the insurrection should not have been allowed to run for any office. Those people refusing subpoenas should have been disqualified. However I digress, many of our branches and offshoots of our branches of government need to be pruned and cleaned up . But the Supreme Court is the most needy of all for a clean cutback.
Thanks Thom. I'll support anything which can be done quickly. Every day, the supremes are becoming the point of the spear for the fascists. Restructuring the court (e.g. to 13 judges) might be quicker and may have less resistance. Retirement ages (forced status change to 'senior' positions off the main court for another example. Whatever, shorter to act against this threat to democracy is better than longer.
How would this happen? Do we need a petition? There is certainly no question that the Supremes should not be interpreting the Constitution arbitrarily based on which factions have the most members. But I'm a little confused. If you think about it, the rancor and sharp divisions in the country have come in large part from certain rulings from the court, such as Brown v. Board. There is no way we would have gotten the movement we've had, as modest as it is, if that case had to be decided unanimously. It's hard to imagine that the conservatives with racist sentiments would ever had gone along with the more liberal justices. Likewise, with the current make-up of the court, agreement on such controversial issues seems impossible. I suspect that increasing the size of the court will have to come first and it will take some world-shaking legislation from a new Congress to set a different tone where putting the power of the court back in perspective will be thinkable.
Intriguing proposal. I'm going off to mull it over -- but before I do . . .
My first thought about requiring unanimity for constitutional questions was "There goes Roe, and there goes Gideon, and there goes Obergefell" and anything grounded in the 14th Amendment. (The decision in Gideon v. Wainwright was primarily grounded in the 6th.) I don't trust "the majority" to safeguard the rights of minorities, the marginalized, or majorities that lack economic and/or electoral power (e.g., women and, before long, people of color). What safeguards do we have?
It's worth noting that all but one of the examples you cite are directly or indirectly related to economic power. (I'm counting access to abortion as the exception, but could easily be persuaded that economic power is involved there too.) This leads straight to the point that the U.S. system of checks and balances offers very few checks on economic power -- and at least since the Reagan administration the GOP's main purpose has been to take advantage of this. In the (far distant) past, the Court filled the gap in some important ways (enabling unions, promoting workplace safety, mandating environmental protections, etc.). What the Court provides, however, it can also take away, and so -- not surprisingly -- the GOP strategy to undo these various protections was to stack the Court. Which they managed to do while Democrats snoozed, quite possibly while courting campaign donors and protecting their investments.
Short version is that I'm having a hard time imagining how to safeguard individual rights, labor rights, environmental protection, and all the rest of it if the judiciary isn't involved -- short of a massive awakening of the electorate, which is likewise hard to imagine.
I appreciate your thoughts Thom but sometimes we have to move beyond just talk. When you aren’t talking you could be wearing a democracy awareness ribbon to help fight against the triple cancers on our nation: ignorance, apathy, and big money in our elections.
Tl;dr. Support the perpetuation of our political institutions and vote right, left, or write in. When only half of us vote we get the Congress we deserve with a 18% job approval rating.
Very sensible suggestion for reform and fixing ambiguity that resulted from a power grab by the Court in 1803.
Something additional is actually needed and can be informed from how other modern democracies operate.
The jurisdiction of ALL lower Federal Courts should be defined as specific to the parties and facts before the Court in matters of Constitutionality or preemption. What this means is that a wacko Federal District Judge could decide, for example, that a particular drug is banned but the decision is “specific” to the parties before the court.
Then only at the Supreme Court level, and with unanimity, could a generally applicable decision be rendered.
This is essentially how the system in the Federal Republic of Germany has operated since 1949. Term limits there also help the jurists respect their role in the overall government structure.
Yes this is a fantastic idea, and I wish "I'd thought of it"!
This plus the other measures you've advocated for are needed - expanding the court, term limits, court stripping, ethics rules - are necessary to "take the monarchy out of the courts", and bring rights and power back to the people.
Those who have paid attention to Scotus over the decades have long seen what the Republicans have been up to…
The Powell Memo quietly made clear their objective of packing Scotus with Activist Judges.
The tactic of "strategic retirement" as some pundits call it, but is more aptly known as Rigging, Packing, and Cheating, has kept at least 2 seats under Republican control for decades. The first goes back to Eisenhower’s appointment of Stewart, who served under several presidents including Carter, but deliberately waited until soon after Reagan's inauguration to retire, giving us O'Connor. In Bush v. Gore, O’Connor’s vote gave us President Bush so she could, as she publicly stated, "retire under a Republican", and Bush gave us Alito (and Roberts). The second seat began with Nixon’s appointment of Powell, who retired just before Reagan's 2nd term ended, giving us Kennedy, and then Kavanaugh. Adding to their cadre of partisan hacks: Corrupt Thomas, plus the seats from Moscow Mitch's subterfuge, and we have this full blown partisan disasterous dumpster fire wreaking havoc upon our country.
To see how far Scotus has gone to ignore the Constitution in their rulings, read for example, the cherry-picked gun decisions in Heller and Breun. It is sickening, and I must warn you, it may make your blood boil to read where Scotus employs language in its questioning, "reasonings", and rulings that appear plagiarized from Fox News, Frank Luntz and Republican talking points! In effect, Fox News is pulling the levers of the court!
There's so very, very much wrong with the last several decades in the decisions by Scotus.
They've given us the many "speech is money" and corporate personhood decisions, destroyed women's right to control their body, eviscerated voting rights, blessed partisan gerrymandering, allow guns in any pocket, and now appear ready to plunge another sword into America's flailing Democracy with Moore v. Harper.
I believe all your recommendations must be implemented. Until then, America continues to suffer while, what I enjoy labeling as, the "Supreme Courtesans", serve to please their corporate and ideological masters.
We have a lot of work to do.
As has been noted elsewhere on this thread, a 9-0 majority every time could mean either nothing gets done or one person blocks everybody else's will. We might do much better with a 13 or 15 member sized court. There is nothing in the Constitution to mandate this and its numbers have varied over the years. Then 7-6 or 8-7 decisions would be less likely than 5-4 ones with more of a middle ground for discussion and compromise possible. (Oh, and incidentally it was Henry II, not Shakespeare who said something like the quote given here about stopping Becket.)
While I agree that the Court badly needs an enforceable code of ethics, and Congress must be more proactive with its jurisdictional powers here, getting rid of judicial review is not likely. Presumably every state supreme court would have to follow suit for the laws of its own jurisdiction and that would be a pretty chaotic national situation. In any case, once something is established as judicial procedure it is very hard to stop it. My older son is a judge and I showed him the discussion about how corporations "became" people. He agreed that it was probably a wrong decision, but said that after 137 years of precedent this was not going to change because of sheer legal momentum.
It will be a long wait. With people like Dick durbin, Dianne feinstein, Christian Cinema, Merrick Garland and Joe Biden, leading the charge. Unlimited greed always ends this way. The rich like it and the poor hate it. The people who wrote the ten commandments, were greedy in my opinion. The Democrats would already control the Congress if Garland had prosecuted the insurrectionists.