SCOTUS: Don’t Get Mad . . . (3)

Do Something

Photo by Tim Mossholder on Unsplash

So now can we get mad?  Sure. But let’s make it brief, and maintain focus.

Anger can be useful, spurring us to action. Venting can be a welcome release, and recruit others to the cause. But soon all this becomes a waste of time, or worse: feeding the hostility that eats away at our democracy. 

Instead of anger, try analysis. Think of the Justices as imperfect arrows that miss the target a lot.  Five of these arrows share a particular defect: hubris. They alone know the truth; everyone before them was wrong; and now they have the power to set everything straight. That presumption will cost the country dearly. But it’s pointless to rail at them as individuals; insults won’t shorten their time in office.

We need to widen our lens: Who put those particular arrows in the quiver, so many sharing the same design? What gives someone power over the quiver?

Wider questions lead to wider goals – we need not just different Justices and better decisions, but a Court recognized as distinct from partisan politics. A still wider view looks at what brought us to this point, factors ranging from Constitutional provisions to informal norms. Each problem threatens the rest of our democracy as well.

Part of the problem is the extent to which we have minority rule.

Minority Rule and Other Root Causes

1. Most current Justices were nominated by presidents who lost the popular vote.

2. The Justices were confirmed by a Senate that gives wildly lopsided power to small states. Wyoming’s two senators represent half a million people. California’s two represent 40 million.

3. Any nominee can be blocked by the Senate Majority Leader alone, who decides whether any nomination (and any bill) even reaches the floor.  

4. The Justices serve for a lifetime. The newest will be with us for 30 years or more.

5. We have only two powerful parties. They have lost the desire, or ability, to compromise. Congress therefore punts on hard questions, leaving too much to the Court.

Uprooting and Replanting

1. Circumvent the electoral college.

   All that’s necessary is for enough states – representing more than half the Electoral College – to ratify the Popular Vote Compact.

2. Lessen the power of sparsely populated states

   Fixing the Senate is by far the hardest to accomplish. But some are trying.

3. Lessen the power of Congressional leaders

   Little noticed, but in principle the easiest to change. The power of the Senate Majority Leader comes entirely from informal norms, from rules of deference that developed gradually. The rank-and-file could change them overnight. What would encourage them to do so? I don’t know, but it’s worth thinking about. Here’s some history

4. End lifetime appointments to the Court.

   Proposals to finesse the Constitutional mandate include staggered appointments (15 years, or 18). Every four years there would be at least one, and no more than two, seats to fill.

5. Increase and diversify the number of parties

   Starting new parties doesn’t accomplish much; witness the Libertarians and the Greens. But the states could create the space for small parties to survive and grow. You’ve heard terms like ranked choice voting, jungle primaries, multi-member Congressional districts. Before your eyes glaze over, skim this article until roughly “There is no ‘center’ party here.”  Then get some coffee and dig in.

My plea in these SCOTUS posts is to move beyond blaming individuals (even my own favorite targets, who remain unnamed). The root problems are structural; changing them will take years. But they’re what matters. Learn more; then choose a project (or two), and find a way to push for progress.

Afterthoughts

• On the Court itself: For a while we’re stuck; there will be years of unfortunate decisions. But watch for the occasional surprise. (Remember, the Justices are not literally partisan.)

• On what I call hubris: Stare decisus, and justifications for violating it, need more discussion. Later.

• On the role of the Senate: When McConnell blocked Obama’s nominee, did he violate the Constitution? Since there’s no court to adjudicate it, the question is unanswerable. Maybe meaningless.

• Who shall salt the salt? Ginni Thomas, married to Justice Clarence Thomas, has worked to overturn the 2020 election. If a relevant case reaches the High Court, Thomas should recuse himself. But if he doesn’t? Again, no court has the authority to force him.

Further Reading

NYTimes: Dangers to our democracy

NPR: Political structures escalating polarization

Ruth Marcus: The legitimacy of the Court