Congress, after we've voted in one with far more integrity than this one (soon!), needs to pass a law requiring that members of the Supreme Court abide by the same Federal judicial ethics standards as all other Federal judges. That, of course, could be struck down by the Court as tampering with the balance of powers, but I can't imagine that they'd dare, given the optics.
That would rein in the worst impulses of the members of the Court for whom absolute power has proven absolutely corrupting.
7
Another needed SCOTUS change, if the Senate refuses to schedule a confirmation hearing within 100 days of the appointment, then the appointment becomes valid without congressional weigh-in.
What the GOP did to Obama (and is doing now) is a criminal act against the US public.
Politics and Pols in power should never hold absolute sway over the court or it's appointments.
11
Before, during, and after the 2016 presidential election I found myself growing more disgusted and despondent over the wholesale selling out of the moral high ground occupied by so many of my"Christian" family members and friends. From Donald Trump to Roy Moore they willingly sold themselves, in order to put judges on the Supreme Court who would overturn Roe, and bring us back to being the God fearing nation of white Christians they envisioned.
Now, just as with Trump and Moore, they are allowing their daughters and granddaughters to see clearly that they don't matter, that the end will ultimately justify the means. The irony with Kavanaugh is they've been sold a real bill of goods this time. Kavanaugh won't be confirmed because he is a social conservative-a deciding vote in putting women back in their place. Any number of conservative judges could fit that bill. Kavanaugh will be confirmed for one reason only-his views on presidential power. Trump can't quit Kavanaugh because he knows he could possibly be his get out of jail free card.
So, to all my friends and family who are gleefully trashing Dr. Ford, cheering McConnell's proclamation to "values voters" and tsking, tsking that "boys will be boys"-great job. Once again you sold your soul, and self respect to support an activist judge who will contine the delegitimization of the Supreme Court. Only not necessarily for the purpose you intended.
20
Inability to reach strong consensus is easily solved. Reduce panel to 1 or 3 justices by Act of Congress.
Constitution does not say how many Supreme Court justices. The actual number is set by Congress (unchanged since 1869). In the past it has been as few as 5 and as many as 10.
Heck a really strong POTUS party could probably have POTUS appoint themself as the sole or Chief Justice.
(The next Congress which broke that party power would then make that illegal by Act of Congress. But right now I think the only restriction is that person could only draw one federal salary.)
1
Try winning more elections
4
Bush V Gore.
6
Jerry! Jerry! If only the DNC Party could stop giving us these crazy “Springer” moments without any proof whatsoever. I’m ready to join the wigs; I mean Whig Party.
1
Leonhardt: "Hypocrisy isn't good for credibility" Facts and the truth must be repeated over and over again.
4
Democrats need to expand the Court and add term limits; and the GOP needs to be destroyed. The party of Lincoln has become a cancer on this country.
10
Rape is not about sex but power and control. And anyone that doesn't believe Kavanaugh, Judge, evangelicals and republicans still worship those things above all others is deaf !
6
The Republican party owns this mess.... THEY are the ones who blew up every norm of decency when they outright stole Obama's SCOTUS pick. Did they think there wouldn't be blow back?
15
The supreme court has always been a joke. For the first hundred years our country was ok with slavery. Then it took another hundred years before blacks could vote. Women couldn’t vote. Native American genocide was ok. And our so-called justice department was ok with all this. The court has never been legitimate. They remind me of another phony institution where the members dress up in robes and profess to be moral authorities.
7
Justice Roberts, "just calling balls and strikes". What a joke! Even an umpire is biased depending on where the catcher sets up. If the ball is close to the plate, even off somewhat, if it spots up to the catcher's glove, he calls it a strike.
Anthony Kennedy shows so much bias toward Trump, it is ridiculously obvious. His son is a exec at Deutsche Bank who loaned Trump millions when other banks except the Russians wouldn't go near Trump. He was toxic. Now Trump says to Kennedy, "Say hi to your son for me" at the state of the union. What hypocrisy on our supreme court. These guys are ideology first, party second and America last.
10
The Supreme Court is not coming apart.
It's just fine, probably in better shape than any other federal institution.
What is coming apart, is the statist socialist dream of turning the United States into another Eurotrash-styleProgressive collectivist society.
The Court's left wing cabal will be nullified soon, and the response of the people to the imposition of the Progressive agenda will be complete.
They have already taken control away from the leftists in the House, the Senate, the Presidency, all but eleven state governor seats, over ninety state senate seats, and countless state house seats.
When the Supreme Court is added to that list, the rejection of the globalist Progressives will be solidified for decades.
Federalism will triumph over statism, individual rights will triumph over the collectivists, and socialism will be relegated to the trash bin where it belongs.
It will be a great day.
4
With all due respect, the New York Times as become an intensely partisan institution that pretends otherwise. Where were these comments when Sotomayor and Kagan were nominated by Barack Obama?
6
@ClearThinker, Did someone step forward and claim that either of them molested them?
17
Kavanaugh was not on the original Federalist judicial list. He was chosen by Trump because of his views on executive power. He comes with so much baggage but the Republicans (in usual fashion) jump on board. Another juror would be confirmed by now and could deliver all the right wing rulings hoped for by Republicans. Instead they get mired down with Kavanaugh. Has Mitch McConnell shoved his penis in a woman’s face? Has Lindsay Graham put his hand over a girls mouth while he groped her? Has Charles Grassley incurred thousands of debt buying stadium seats. Probably not but they side with this guy, refuse an independent investigation and here we are. Disgusted with all.
8
I've had my hopes for John Roberts, but if he can't even protect the Voting Rights Act, we should just consider him as much of a Republican apparatchik as the rest.
A possible future:
- If no more allegations surface before the vote, Republicans ram through Brett Kavanaugh. If more allegations surface, Kavanaugh withdraws and Republicans rush Amy Coney Barrett through confirmation.
- This appalling and sexist display costs Republicans the House and the Senate. Ruth Bader Ginsburg exhales and has a cheeseburger.
- The new Supreme Court majority overturns Roe v. Wade, LGBTQ rights, worker protections, and environmental regulations.
- Republicans lose women and everyone under 40 for a generation.
5
I used to think the Supreme Court was the Jewel of our American Democracy, the Guardian of the Constitution. The Supreme Court we have today is a Money-is-Supreme Court. Money is Free $peech so you can't limit money in elections. Corporations have Civil Rights? The flood of Dark Money the Supreme Court has loosed on voters has raised corruption in the US Government to astronomical levels. The Voting Rights Act? Gut it! Now they get a judge chosen to put President Trump beyond reach of the law by a Party refusing to investigate him for possible perjury or sexual assault. One of his sexual assault accusers gets to talk then they send him on to the full Senate.
Vote vote vote .......
4
What about the Constitution?
Article I Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States … (note that “people” appears only here and in the Preamble)
Article I Section 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof …
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Inserting into Amendment IX: The Times, Places and Manner of holding Elections for ... Representatives shall not be construed to deny or disparage the peoples’ right to choose their ... Representatives.
To me this is a statement that the redistricting process can not interfere with the peoples choice of Representatives, contrary to the present gerrymandering. Can’t the justices see this?
1
"The Supreme Court Is Coming Apart." A clear presentation of selected foci." Apart" clearly suggests that the court from its inception was united. Together. Sageful in its deliberations and conclusions! Is this so? Was it ever so? And as flawed, freedom-loving human beings created a new political entity, and nation, on lands stolen from other human beings, what attracted them as they thought about Old Testament sages? The Bible is full of human created, unresolved, problems? What is the relationship, if any, between a working SUPREME court, being a white, male, Protestant judicial-forum for most of its judging and deciding history? What was ethically legitimate about this? Mr. Leonhardt raises the issue of a "crisis of legitimacy" for the Supreme Court. In addition is it not time to consider that all of US are facing a daily crisis in our loss of menchlich interchanges between one another? Of daily living with mistrust? Not feeling respected and not respecting the other? Those whom we know as well as strangers!Of the numbing of caringness? As we consider, think about, feel about, and judge what Judge Kavanaugh did or didn't do, re two accusations now, what will enable each of US to ALSO invest time and energy to consider in what ways each of us is/may be complicit in each day's WE-THEY culture which violates selected and targeted "the other" in endless ways? Our own believed in human(e) legitimacy may be at stake!
Why should the Court be any different than the other branches? The circus is still in crazytown and all the performers are continuing with their routines. Trump is still the ringmaster, the clowns in Congress are running around shouting crazy nonsense and the Court will perform its duty as the chorus. The ring tasked with approving a Justice to the SC keeps extolling the virtues of the candidate, The ring responsible for firing the AG or his agent is vacillating over whom to fire and the ring responsible for ascertaining Russia's involvement in US affairs is having difficulty determining what if anything it is supposed to do. The three ring circus is alive but , perhaps, not too well.
A legitimacy crisis? Been there, done that. Bush vs Gore, Citizens United. That die was cast long ago. The largest problem facing the current Court and future ones if Trump is allowed to choose nominees - is irrelevancy. As the Court shifts more and more to the primitive right and towards Constitutional Absolutism, an ever changing and dynamic American society will simply choose to ignore its rulings. Americans can only look forward to a future of breaking laws.
4
If the Court was ever truly non-partisan, that ended when Merritt Garland was not permitted the hearing that all other nominees have received.
The Court has been further politicized with the appointment of Gorsuch and the current attempts to appoint Kavanaugh, both of whom have been touted as sufficiently "conservative."
In fact, Kavanaugh, like Gorsuch, was put forward by The Federalist Society, a conservative group that has groomed him and others for years. Furthermore, Kavanaugh is said to be on the right fringe of even that right-wing group.
Was I ignorant in the past of the real politics going on during nominations or is everything becoming more politicized these days?
Sometimes we need to just consider the character of the person who is nominated, not what party they are loyal to.
2
There is a simple if odd way to assure the election of moderate justices. Rather than having the Senate as a whole vote to approve nominees, add a rule that the two parties must both approve a nominee in separate votes. (Or any party with 30 or more seats in the Senate). If a majority of Senators from each party had to approve a nominee there'd be no more concealing documents, no more nominating partisan extremists and no more denying a sitting president his right to
put up a candidate's name.
2
The fabric rips in the Supreme Court made its first appearance with Robert Bork's nomination, exacerbated with the supremely injudicious Court nomination of the spectacularly unfit Clarence Thomas.
Mitch McConnell brought the degradation to even lower depths by reneging on his constitutional obligation to hold hearings for the eminently qualified Merrick Garland, then reversing himself 180 degrees when Justice Kennedy retired.
The Court has at last become a nakedly partisan tool for ideological control, and little else besides that. Majority Leader McConnell is the primary villain in this piece because his gamesmanship lacks even the patina of substance or principle.
What results is the dreary spectacle of revenge and counter-revenge without the slightest hint of statesmanship. There is no end in sight, save a massive re-alignment of national politics.
The fact that nobody can envision such a thing happening hardly means it won't happen.
4
As a court employee, I am well-versed in our Judicial Code of Conduct, which applies to all court employees including judges. In so many ways, and is so many of our actions, our primary concern is to avoid the appearance of impropriety. We all know that improper behavior undermines the legitimacy of the courts in the eyes of the public who are our customers. Study after study confirms it: the People want courts that listen, and are neutral, fair and respectful. It's hard not to think that this concept is lost in our highest court.
6
Bush v. Gore, 531 U.S. 98, in December of 2000 was when any pretense to legitimacy or fairness of the Supreme Court was laid to rest.
Denying Obama's nominee senate hearings was yet another shameful bullet item on the Republicans' resume.
The supreme court is a joke and a disgrace.
The author's suggestion of 18 year appointments would go some ways toward rectifying the court's legitimacy.
5
8 year terms. Aggressive use of impeachment against those who engage in demagoguery, as did Scalia so often.
3
It really did begin with Reagan, who gave away his Presidential powers to bankers, lobbyists, law-and-order crazies and grifters. And it continued through the Bushes. Republicans can't wait to get the power so they can fill their pockets and those of their friends. As they operate now, they don't deserve to get near government - and especially the Supreme Court.
2
Massive suffering is pipeline loaded.
NYT opinion writers: To construct an argument, better to use the 4.54 billion year sample space of evolution rather than human history because it's more fundamental.
Recall: "Initial conditions rule in complex systems." Stewart Brand
One evolutionary pattern is: complexity increases weaken the efficacy of code, whether genetic, legal, religious, monetary, software, etc.
Another is: Code is relationship infrastructure in bio, cultural & tech networks: genetic language math moral religious legal monetary etiquette software etc.
"The story of human intelligence starts with a universe that is capable of encoding information." Ray Kurzweil
Exponentially accelerating complexity increasingly weakens our culture-code infrastructure, including legal code of course.
Soon it will come for our biological (genetic) code, bringing "premature and perverted death" to our descendants.
Other species' genetic code is already under assault with exponential extinction rates over baseline rates & huge population drops in many species that still exist.
Consider:
The New Natural Selection Tests
Natural selection tests have become more complex for many species. Genetic codes remain on the exam; human culture codes have been added. For example, elephant and dolphin survival are no longer merely a function of their biological genomes, but also a function of the human cultural genome, that is, of moral, legal, monetary and other cultural coding structures.
2
Of the 30 Supreme Court justices appointed before 1850, all but four were appointed by presidents who owned slave plantations. During that period, the chief job of the Supreme Court was to uphold the institution of slavery. In the 1850s the slave states lost control of the Electoral College, and thus were destined to eventually lose the Supreme Court. Secession followed.
The Civil War, Reconstruction, the rise of the Klan, Jim Crow, "separate but equal" -- these were all steps in the ensuing tug of war, with Civil Rights backlash being the most powerful political force in the nation today.
White tribalism has been struggling to regain control of the Court ever since the Civil War, with periodic success. Its biggest setback was the Warren Court of the Civil Rights era, but we are on the verge of erasing that legacy and returning the Court to its original purpose: white nationalism.
4
Perhaps we're all jaded and degraded by the selling of sex via every imaginable medium in existence. Movies, TV, print, advertising on all media, ads for anything imaginable are saturated with sexual references and innuendo. It has become a selling point, it's cheapened our lives and our values by creating false values. Our president brags about sex. It's no wonder we've hit bottom in the Supreme Court nomination process. Where do we go from here?
1
The supreme court has more legitimacy than the other two branches of government by a long shot.
2
@Ma: Maybe. But isn’t that faint praise? And look at the way it’s “trending”. Perhaps it is only lagging behind the other two branches as all three deteriorate.
GOP and fairness parted company long before.
Now they are parting company with decency.
If alleged Racists, Child molesters, and Lechs are the choice for party of family values. What institution is safe.
3
This mess makes my heart sick. There must be a better way of selecting SC justices who are qualified in terms of knowledge and experience AND of unimpeachable character and sound mind AND will rule independently of party loyalty and political ideology. I want justices who owe nothing to anybody when they make decisions. I want them to have a balanced record that defies any litmus test on issues, even the ones of greatest concern to me. This appointment process MUST be reformed to ensure Americans believe in our system of justice. This president and Republican Party are attacking that system almost daily and the harm will be hard to undo once faith is lost.
1
With all the talk these days of replacing people with robots, perhaps we could do the same with the Supreme Court. The votes would be no less predictable, and we would be spared having to listen to educated people using their education to contrive legally plausible rationales for their predetermined decisions.
3
Pretty simple formula: The Supremes are far right, and therefore a failing institution. Would Mr. Leonhardt being arguing the same if the politics were reversed? Doubtful.
3
@c smith Is justice right or left just asking.
1
There is no far left. The court is compromised by the years of Republican treachery. Merrick Garland.
6
David Leonhardt:
This is not the first time this has happened.
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The same thing happened to the Supreme Court in the lead-up to the Civil War.
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The same thing happened to the Supreme Court just before the Great Depression.
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One source of the problem is that the Senate is not, and never has been, democratic.
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America needs a constitutional amendment to re-structure the Senate. The six year terms are ok. There is no need for term limits in the Senate or in the Supreme Court.
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However, the idea that Wyoming and California should have the same voting power in the Senate is untenable.
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In the meantime, perhaps ratification of Supreme Court choices could require a double majority:
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a majority of senators, where the majority of senators must also represent a majority (or maybe 60%) of the population, where each senator's vote counts for half the populations of his or her state.
1
@Richard Blaine...Wrong. By your own admission, Senate isn't a democratic institution. SCOTUS is even less, with the lack of any sort of term limits the main culprit as to why. Life-long positions, whether elected or appointed, no place in a true democracy.
3
The supreme court is essentially a very well-qualified, vetted jury. Go a step further: hold a lottery every session and select nine senior judges from an expanded pool of federal and state benches, legal academics, bar association officers, retired senators, governors etc., validated by bipartisan committees and 2/3 of the Senate. Introduce a radical element of chance in who sits on the court, but maintain breadth and quality of personnel.
An alternative way to elect judges on the Supreme Court could be by creating an electoral college consisting of the deans of the top say 100 law schools in the country. And, yes, such college would not be "representative", in the sense of elected by public vote, not even indirectly: but maybe that could be a good thing, as the representation principle, if applied to every single institution, can easily result in the tyranny of the majority
This piece makes an interesting point that, as Democrats in general have become more moderate, Republicans seem to have taken that as a cue not to mirror, but to become more extreme.
Even using the word "Conservative" for the Trump base and these justices is incorrect. They are reactionaries, not conservatives.
I'm guessing the crime of wanting every citizen to have meaningful health insurance is considered unforgivable.
2
@Solon If GOP-nominated justices are becoming more extreme, why does the very Martin-Quinn research that Leonhardt cites in this article show that the two most moderate justices are Roberts and Gorsuch, both nominated by Republicans? (https://en.wikipedia.org/wiki/Ideological_leanings_of_United_States_Supr...
You should be comforted to know that evidence shows the court is not nearly as partisan as you seem to fear. After all, if Roberts "has chosen radical activism," as Leonhardt says, how did he end up in the majority in 93% of cases and why did he agree with Justice Sotomayor (the farthest left of all sitting justices) in 66% of cases? http://www.scotusblog.com/wp-content/uploads/2018/06/SB_agreement-tables...
Court battles are a symptom of a diseased democracy.
See Washington Post article July 10. --“Selecting a Supreme Court justice doesn’t have to be a battle royal. Here’s how other countries do it.”
Quotes: other nations “pick judges with less controversy---the choices aren’t seen as the apex of a political struggle with results that could endure for a generation.” Judges retire at 70 or 75.
We’re a warning –what not to do. Proposals to move Canada toward a US style confirmation process were rejected for fear it would politicize the court.
In many countries judges are selected by legal and parliamentary committees. The court isn’t seen as starkly ideological terrain where the nation's toughest questions will be adjudicated. Trump announced a list of potential nominees before the 2016 election, with input from Heritage, a conservative think tank.”
The US lacks political agreement on basic human and economic rights for citizens, that other democracies have reached more consensuses on. Their courts don’t have to decide on laws to protect voting rights, health care, abortion, labor union membership, etc.
Crucially, their courts don’t equate unlimited corporate campaign donations with ‘free speech’ per their constitution. With more political balance for citizen interests, fewer hot issues rock their politics that their highest court must decide for the nation.
Roe v. Wade in doubt? Miranda? Brown v. Board of Education? If the Court's legitimacy is in doubt, so is the legitimacy of these decisions.
3
The "conservatives", by working so assiduously to game the court, will end up killing it. Such is the consequence of activist reactionaries who call themselves conservative, but don't believe in conserving anything but their own power.
2
Whatever the Chief Justice’s intentions were, he made this court what it is. The Supreme Court may have been politicized before, but the court’s decision in CITIZENS UNITED v. FEC made the fiasco we see today. To equate funding campaigns with free speech, and make source of that money dark at the same time, meant our public life was doomed to be dominated by a few well-funded and ideologically driven organizations.
Look at the Kavanaugh confirmation fight. Regardless of the right or wrong of it, no Republican senator is going to break from the party line. It would be career suicide. All the money from the gun lobby, the mega-churches, and all the big Republican donors would be turned against them in the next primary. So indirectly, with money being the primary driver in politics, supreme court seats are commodities for sale.
2
The Democrat appointed justices are the most extreme. All four found President Obama's attempt to extend federal benefits and work permits to illegal immigrants as within the president's authority. The most striking example of partisanship in decades yet not even mentioned in this piece.
3
If we go to a popular vote for the presidency, and scrap the electoral college, which proved itself useless with Trump, we would not have to do any of these things. Then the court would better reflect the will of the general public.
1
@enzibzianna: The fact that the US president is not elected by popular vote makes the individual unrepresentative of all of the people.
It is not the Supreme Court that is coming apart. It is the United States of America. Remember how quickly the USSR collapsed. Everyone was surprised. I think it is happening to us right now.
Many of our founding father were doubtful about the stability of a republic. Looks like they might have been right. And in the scheme of things, 250 years isn't a bad run.
4
Seems that one way to help this mess would be the opposite of the R's rules change to allow confirmation with 50% of the Senate, when it was 60% historically - that would be to change it to 75%! This would mean any 'radical' judge would never be approvable by either party, and only more centrist judges would even make the "possibles" list.
1
The Supreme Court HAS already come apart!
And it's largely due to the sort of zealot judges the Republicans have picked and rammed through approval (Thomas, Scalia, Gorsuch).
And the way that these judges vote in lock-step and act--Scalia was notoriously insulting about his own colleagues.
A mirror of what the right has done to the Congress and government, in general, at all levels.
4
The Supreme Court irrevocably lost all legitimacy with their Bush v. Gore decision in 2000.
4
"...the court will block government action on the two biggest threats to this country’s security and stability: climate change and stagnant middle-class living standards." Fox News-watching conservatives don't care about either of these issues. Firstly, they aren't middle-class, they are 'temporarily-embarrassed millionaires'. Secondly, climate change is not human-caused, but the End Times, when you'll go to your reward while the liberals all burn in another place. 'Willful ignorance' still leads to ignorance, and ignorance is bliss.
2
The court is already wildly unrepresentative of US citizens. Legitimacy? What legitimacy? It is controlled by the same wealthy elite oligarchy that now controls the Congress in both parties. It has connived at GOP election interference. Gerrymandering is so bad that the GOP wins control of the US without being freely elected by a majority. A significant fraction of voters are disaffected and so sure that all elections are rigged they no longer bother to vote.
1
The last time enlarging the number of justices was proposed (FDR in the thirties), some of the conservatives got the vapors over "court packing". I submit that if Kavanaugh or someone of his ilk is seated, the correct response would be that this was unpacking the court. At worst, it would be returning the court to a even keel.
1
Great article. But face it, he will be approved by the white men. Is very sad, especially when Obama's choice was never even concidered by the Reps, that was a travasity, yet now they moan about the current situation.
Vote in November and vote in 2020. It is sad that the current administration is filling the swamp (with people not even qualified for the jobs), not draining the swamp.
Wish that the Trump posse would read more and understand the very serious consequences of electing Trump.
The electrocal college must be eliminated, it has failed our country twice in my recent memory and look at the conquences, and it's not even over for Trump. Don't worry, there is another war just over the horizon! Most likely when the Mueller report is released or some one in the IRS leaks Trump tax reports...PLEASE do it!
The Bush-Gore election should have gone to the House of Representatives for determination, as did the elections of 1800, 1824 and 1876.
Instead, the "self-packing" U.S. Supreme Court attacked its credibility to put Bush into power, and the institution has been crudely political since.
2
A third woman or more coming forward against Kavanaugh.
https://www.vox.com/policy-and-politics/2018/9/24/17896136/michael-avena...
2
Mr. Leonhardt proposes that the Supreme Court is "coming apart," citing intense partisanship and "radical Republican justices." I find this stance laughable, as it comes from a person who probably backed the Court as long as it had a progressive majority.
A court with a conservative majority is still a court of judges, and will still "call balls and strikes," with a change in overall philosophy that hews closer to an originalist interpretation of the U.S. Constitution and a bit farther from group rights.
Blocking legislation on "climate change and stagnant middle-class living standards" is cited as a path to Armageddon.
No, the courts should not legislate, and should not allow the executive departments to act in defiance of Congress on matters that devolve as duties of the legislative branch.
I for one look forward to that change.
2
The conservative judges have consistently legislated from the bench; that is their goal because it is the goal of the GOP who put them there. The Republicans know their policies cannot be enacted by popular vote, (heck, they can't get a president elected by popular vote!) so they continue to illegally pack the court to poison the country long after their antiquated party is dead. Merrick Garland.
6
It's hard to believe that Leonhardt is writing in good faith, given that the very Martin-Quinn research he cites directly contradicts his claim that "there are no more Republican moderates." According to the latest figures, the two most moderate justices are Roberts and Gorsuch, both nominated by Republicans. (https://en.wikipedia.org/wiki/Ideological_leanings_of_United_States_Supr...
Leonhardt also claims that Roberts and his "zealously activist" court have thrown out voting rights laws, but the very NYT piece he cites gives two examples of unanimous decisions by the Roberts courts on partisan gerrymandering. (https://www.nytimes.com/interactive/2018/06/18/us/politics/supreme-court...
In short, Leonhardt should be comforted to know that evidence shows the court is not nearly as partisan as he fears. After all, if Roberts "has chosen radical activism," how did he end up in the majority in 93% of cases and why did he agree with Justice Sotomayor (the farthest left of all sitting justices) in 66% of cases? http://www.scotusblog.com/wp-content/uploads/2018/06/SB_agreement-tables...
2
"Term limits" for the Supreme Court means amending the Constitution. Open that door with the existing venal, banal system and there is no way to avoid disaster. None. Why would anyone suppose that a Congress which cannot pass legislation of any importance at all without it being severely partisan would suddenly agree to "fix" the problem of the Supreme Court? Ain't gonna happen. The real problem is the lack of intellectual rigor in the appointees. "Expanding" the Court was tried under FDR -- it failed as it should. The Court is accepting and deciding fewer and fewer cases as it is. Given the lack of intellectual rigor now allowed in candidates and their lower case load, perhaps what would work would changing the Rules of Procedure and sending fewer cases forward: this would require the cooperation of the Court itself in granting fewer orders certiorari but might be possible. Restoring intellectual rigor as a requirement would also be useful. Oh, and impeaching Clarence Thomas for his past lies as part of his confirmation would go a long way to restoring the faith of all people, but especially women in the "vetting" of the approval process. Restoration of confidence in the quality and impartiality of jurisprudence is essential for the safety of our representative democracy.
1
There's another way not even mentioned in this analysis: restore the 60 vote requirement for approval of Supreme Court nominees. In fact, I would recommend going to a 2/3 majority -- 67 votes. This would eliminate the kind of partisan wrangling and spectacle we are witnessing by ensuring that the nominee can't be partisan or have a partisan background. It would require at least some bipartisan agreement on every seat and force presidents to always nominate someone much more in the mainstream of American thought, opinion and legal philosophy. (Something, by the way, that Obama did in nominating Garland.
2
The idea of a Supreme Court is quite outdated and paternalistic. Its quiet possible nowadays to use direct voting by whole US population...or at least that part who can prove that they read the whole case being reviewed.
TBH I think a law degree is increasingly unnecessary. Quite often in the last 50+ years the judges have voted primarily on the basis of social consciousness of their background or public opinion -- then shoved legal basis of modest to poor quality under to support that decision.
Given that the SC has increasingly dropped all specific and practical resolution on lower courts after general statement -- there is no reason not to have direct opinion of informed US citizens point the new direction.
Perhaps the various US state Bar organizations can be harnessed to organize the vote into simple multiple choices options -- plus of course a couple of options that say (1) lawyers did not offer any good option and (2) I voted for the best one but all options had major defects. Either of the last two with heavy voting count causing a new round of voting on revised options.
you say there are no more moderate conservatives on the court. but there are no moderate liberals either. let's call it as it is.
2
Virtually all liberals are moderates. Only from the extreme right point of view would it seem otherwise. Merrick Garland.
1
You have a country becoming more progressive and a court becoming more conservative. That's the problem. Age and term limits need to happen.
2
I haven't trusted the Supreme Court since their decision in the 2000 presidential election, and the Citizens United decision really did me in.
Certain members of the Court are trying their best to rip democracy out from under us, like the proverbial rug.
Term limits could help, but it's impossible to completely remove peoples' political views from their minds.
4
You know there is a problem when you see TV ads advocating for a Supreme Court justice. Why is the Federalist Society the only group that gets to weigh in on justice qualifications?
The court has been politicized; it is irrelevant to worry too much about who started it (a children's argument). What we need to do now is work out a process in which we can get reasonable justices on the bench.
5
I support the term limit for supreme court justices.
The original logic of non-political bias for life-time tenure is clearly not working.
3
When Scalia stepped in to stop the vote counting in Florida, he undermined the validity of the 2000 election. The Court in Bush v Gore cited not a single precedent for their decision, and specifically stated their most important and historically important decision EVER could not be cited as precedent in future cases. This is the exact moment when the SCOTUS began to crumble, when partisanship replaced the long history of the Court's jurisprudence as the guiding principles of our law.
6
Susan - It is the exact moment when our Democracy died. Conservative judges, hand picked by the conservative GOP for their "state's rights" stance, abrogated Florida law to elect, all on their own, the GOP presidential nominee. Seems state's right only matters when trying to outlaw abortion or bring back slavery. Five men out-voted a nation. That is the day Democracy died, as you point out, in a one time only, not to be used as precedent (lest it be used ever be used to install a more liberal candidate) decision by five conservative Republicans. We have been a zombie Democracy ever since.
3
The court's is not, and has never been, unbiased. At it's beginnings Washington's Federalist appointees favored the Federalist Adams over last minute Executive branch moves over the incoming Jefferson. They allowed individuals to sue states in Federal Courts. In Scott v. Sanford, a majority of southern Justices on the Court struck down the Missouri Compromise. Stephen Breyer, when tersely questioned about Bush v. Gore, is fond of saying that he turns on a television set and shows how things are settled in some other countries. It may come to that here soon. Wouldn't be a first.
In a country with the politically appointed Justices there is neither justice nor democracy.
If the judicial decisions depend on the political preferences of the judges there are no functioning laws.
Politics and democracy are mutually exclusive.
Burdening the future generations with our spending and the debts is the worst from of the politics.
Shifting the tax burden from the one generation to the next one is the worst form of the politics and the astonishing lack of morality and democracy.
1
I truly believe the unraveling started with Bush v. Gore. That single decision broke the flood gates and led us to where we are today--a hyperpartisan court, full of mistrust, that does not reflect the will of the people, only the will of corporations and the men with money.
2
I am never disappointed by the NYT's columnists portraying reality as something fictional. To even hint that democrat appointed judges are never activist (Supreme Court or federal appellate) is just blind partisanship. But this is what fair-minded thinking Americans have come to expect from the Editorial Board to the columnists to the reporters.
Pretending that abortion, homosexual marriage, and other "rights" established by liberal judges is not activist is simply a hollow argument. The Constitution is simple to understand. Inalienable rights from God would never include marriage between two of the same gender or the taking of life. Yet this court decided these are rights.
Democrats have proven time and again they will use the courts to get around the will of the people and their elected representatives. That is the sense of urgency here. To stop the subversion of the Constitution by activist liberal judges. Denying that liberal judges are not activist is just insulting to the intelligence of millions of Americans.
Obama famously said "elections have consequences" as he shut down any conservative contribution to healthcare reform ideas. So it is today with the Supreme Court nomination approval process. But you see how desperate democrats are to delay the process until their hope against hope in the upcoming election. I remember the character assassination of Bork and Thomas. It was a shameless destruction of two accomplished jurists by Joe Biden and Ted Kennedy.
1
The one and only reason why the Supreme Court may be falling apart is because liberals and papers like the Times have been attacking it without cause. All three liberal justices were confirmed with bipartisan support even though Elena Kagan has no business being on the bench. It is the Democrats who have politicized this process. I find it rich that they now complain that its falling apart. Well yea, you did it.
2
"possibility that Roberts comes to understand" "clearly cares" "respecting" "reasonable to hope" and on and on it goes...
Wake up liberals. The Right doesn't even speak that language. What's next, lecturing sharks on sustainable fisheries?
2
sorry but the left doesn't speak that language either. men are now guilty until proven innocent, schools have 3 bathrooms the list goes on...
1
I have two words for "Bored" - Merrick Garland.
1
What is pack of nonsense.
he knows virtually nothing about the courts long and contentious history.
Packing the Court was tried under Roosevelt, etc.
1
The Supreme Court... let me rephrase that: Our Supreme Court is in grave peril of becoming the judicial arm of koch industries and no one who believes in American democracy can think that is a good idea.
When t rump was elected the republican establishment tried to tell US that he would change once inaugurated; the office would lead him to the notion of doing what is right. We have seen how that is working out.
Perhaps Roberts will grow into his job; perhaps he will see that extreme ideology has no place in "calling balls and strikes".
Perhaps, but I am not hopeful. Adding term limits and two more justices would give me more hope.
1
it is high time to place TERM - LIMIT on Supreme Court Justice positions !
What a joke analysis. The 4 Democratic appointees are all reliable left-wingers. Not one is a moderate. They are the ones who found in the Constitution a right to same-sex marriage. They block vote for the Democratic policy line virtually every time. Leonardt says they’re not radical because he agrees with them.
5
The liberal justices are only considered radical because reactionary corporate forces have spent billions of dollars over the last forty years in an effort to drag America to the Right. They're sane centrists in any other modern political system
3
SCOTUS lost much of its credibility when it interfered with the Florida re-count in 2000 by "appointing" Bush. Later analysis by Factcheck.org showed that Gore actually won Florida and the election. That didn't stop the head of the Supreme Court from crowing about their relevance in "protecting" democracy.
Since that time, SCOTUS has become even more bent to the "conservative." We should, at this point, stop calling this point of view conservative. I was a conservative. These people are fascists.
The Roberts court continues to corrupt the interpretation of the Constitution bending it in all sorts of undemocratic ways. The ultimate outcome will be a revolution. Roberts had better hope that the fascists win. Otherwise, he will face his own trial.
3
@Rocketscientist Actually, Gote would have lost the recount which has been thoroughly documented.
1
How can we eliminate the Supreme Court and replace it with a kangaroo court? It would be nearer to what serves America. The constant threat to set new precedent is ridiculous. These people are not lawyers; they are politicians in penguin suits.
There is a very, very significant problem with journalism in America today, and it is exemplified in this opinion piece. It's very easy to cherry-pick fact points to make an argument, but arguments based on selective data need to be understood for what they are--propaganda. Such is the case here.
Certainly it's true that Supreme Court appointments are political, but they have always been political, and presidents have always expected their appointments to reflect their own ideology. The Byron Whites and David Souters on the Court stand out simply because they are the exceptions which did not conform to the expectations of the administration which appointed them.
The truth, conveniently omitted by Leonhardt in his article, is that unanimous decisions of the Supreme Court are at an all time modern era high, meaning that these supposedly polarized political hacks on the Court seem to agree with one another far more than the past. But that doesn't fit into Leonhardt's narrative, so he omitted it. His propaganda is a disservice to the public and if anything, is contributing to the very de-legitimization of the Court that he is decrying.
4
The third major threat to the court comes from the radicalness of Democrat-appointed justices. As the maxim goes: It takes two to tango.
1
Would Mr. Leonhardt write the same of the court of the late 60s/early 70s that issued radically leftish opinions we are still fighting over today?
Radically left opinions that the rest of the modern world don't seem to argue over?
1
Stealing one seat and to stuff another with a man whose past is unclear at this point is an abomination.
Should a president under investigation for possible crimes against the state be appointing anybody to any position? His batting average is poor to say the least.
2
The takeover of the Supreme Court is one feature of the slow coup.
3
The old Greeks believed in the almighty seers. The modern America believes in the equally powerful Justices…
Just ask them any question and they will provide you with the answers.
Why did the humanity waste several millenniums in vain?
the SCOTUS was not supposed to be political. Read Hamilton's writings on this - it's all there.
It worked for 160 years or so. Lets fix with a Constitutional Amendment!!
1
SCOTUS, like everything else these days, is a sham. All decent people should leave the country while we still can.
5
you first. still a way better place than anywhere else in the world.
1
@bored critic Try Canada.
Mr. Leonhardt, it sounds like you're saying the court is only legitimate when it's liberal. Is that what you're saying?
2
Ah yes, If only HRC were President, then there would be no crisis of legitimacy.
1
i have lost all respect for the supreme court. they are not advocating justice. whether 4/4 or 5/4, they are ruling on law only, and ignoring the justice portion of their mandate. the conservatives dont care about justice, fairness, the rights of the underdog. any judge who abdicates caring for such has given up their authority to judge. they are not wise. law not tempered by justice is enslavement. i hope that states will start to reject scotus judgements if a fifth radical is seated. i hope that dems load the court up. roberts will never be wise. those 4 judges should not be on the court. they are all monsters. they deserve impeachment and removal, how, i do not know, but they deserve it. they are destroying our nation.
@Michael Rosenbaum There is no justice mandate for the Supreme Court. It’s up to congress to write the laws that change the country. The Supreme Court exists to make sure that the constitution and the law are upheld.
1
We the People of the United States have the power to punish the lying thieving Republicans who stole a Supreme Court seat and the federal judiciary by refusing to vote for ANY Republicans.
Mitch McConnell is a craven political hack, and his GOP minions lack the backbone to stand up against him. This means that when We the People take our power back on Election Day, we ought to refuse to lend it to people who are dishonest, who are willing to shred the Constitution, and cheapen and weaken our institutions for the sake of pleasing their political base and winning the next election.
We get the government we deserve, and we deserve better than the lying thieving Republicans in the majority in Congress.
Make Mitch McConnell minority leader again.
Make America Sane Again.
When Charles Taylor of Liberia can 'win' re-election based on the actions of the SCOTUS, you know you have lost all legitimacy.
When the court of kangaroos elected Bush as the president, that was the end of the SCOTUS. They are still a farce to this day.
1
Another concern is that the Supreme Court now consists of 9 Ivy League clones. Diversity doesn't just mean race and gender. We need some people from other colleges, other parts of the country, other life experiences. If Kavanaugh gets confirmed, we will have two justices from the same (wealthy entitled) high school !
https://www.washingtonpost.com/news/speaking-of-science/wp/2018/07/11/ev...
4
Now a second woman accuses Kavanaugh of sexual misconduct.
8/17/98 Democrat President Bill Clinton becomes the first sitting president to testify before a grand jury investigating his conduct. After the questioning at the White House is finished, Clinton goes on national TV to admit he had an inappropriate relationship with Monica Lewinsky.
How can we keep our country moral, decent and honest? How can we protect our little children? How can we stop promoting indecent and immoral lifestyles to the rest of the world? Lets put God back into the equation.
Trying to put god back in the equation is exactly what the extreme right has done with their judicial appointments since Reagan. God has no place in our government.
2
I totally lost respect for the Supreme Court after their horrendous decision in Bush vs Gore. Nothing has changed my mind, apart from further disgust, since that time. The writer is correct, they have simply become ideological partisans in black robes.
2
Now is the time for cameras in the Supreme Court .
2
Another Democratic institution ruined by the Republicans. Why don't they just admit it. They do not like Democracy.
2
The Supreme Court is not illegitimate yet despite thirty years of Democrat attacks.
All that’s missing is a Democrat president with a Democrat Senate willing to pack the Court to ensure permanent leftist rule.
It’ll happen and at that point liberty in this nation is finished.
1
I believe Roberts is illegitimate, since Bush was illegitimate.
It's been like this since GOP found way to steal and not live by the democratic principals.
1
Maybe Trump could find someone who keeps his clothes on.
1
I submit that the crisis started in 2000, when SCOTUS interfered with the election recount. It’s been down hill ever since.
1
What? Are their no sane writers at The Times?
The Court "risks" a crisis of legitimacy?
Where have you been.
The Court lost legitimacy when Roberts took the oath.
Stealing a Supreme Court seat by refusing to perform "advise and consent" functions for a year.
Try to keep up.
The Times and other media should QUIT REPORTING ON TRAMP'S EVERY MOVE.
Report on what can be done to stop the demise of the country.
1
The solution? Congress needs to stop ceding decision-making power to the Supreme Court. Congress can legislate to overturn virtually every decision the Court makes.
3
Term limits for the Supreme Court sounds like a fair resolution. As it is going now, the court has become so political, there will be no Justice for all.
It required armed military action and subsequent death of hundreds of thousands of lives to defeat slavery in America. enslavement was known to be morally unjust. The USSC was of no help to the anti slavery forces, or to American Indian Nations, or Women. Except for a few short periods of its history the USSC has always been in the back pockets of the wealthy businesses and corporations.
2
One more change needs to be considered in SCOTUS appointment process.
Constitution has made SCOTUS appointment a presidential privilege. On the other hand, the constitution also wants to uphold judicial independence. History has shown that these two expectations are at odds.
The judicial independence is of higher importance in the constitution than presidential privilege. Therefore, SCOTUS appointment should be merit based selection process and not a presidential privilege.
The Court embarrassed itself with the Bush v. Gore appointment, and completely lost any claim to legitimacy when Merrick Garland was denied his rightful seat.
3
@Nicole The Court has nothing to do with whether or not Merrick Garland was confirmed. The Supreme Court does not pick its own members nor do justices campaign for new justices. The senate confirms new justices and no one has a right to a seat even if they have been nominated by the President.
2
Perhaps if you did some checking in the History Books that are not presently taught in our higher educational institutions, you'd find that the Supreme Court has a long list of strife and disagreement. From the stacking of the court by President Roosevelt to the infighting that took place in the early days of the Country, there has been nothing but controlled chaos behind those black robes.
We will endure.
The legitimacy crisis started with Bush v. Gore, continued with the gutting of the Voting Rights Act, and also continued with Scalia's bad-faith decisions.
150
@NorCal Girl. I agree.
1
I lost my respect for the Court after Bush v. Gore when they showed themselves to be the political hacks that they are. Sadly, nothing since then has changed my opinion.
1
You are just noticing now? When they ruled that recounting ballots was unconstitutional in Bush V Gore, they cemented their reputation as a political body.
When people feel they cannot have their day in court with a justice system blind to political party, they give up on the game. They take matters into their own hands. Anarchy begins with the loss of hope.
3
Lifetime appointments used to be 50 years back in the 1700’s. Term limits should be instated.
Don't forget, it's not just the Supreme Court that's being "stacked" with right wing activists, the senate republicans also held up over 100 federal judgeships during Obama's presidency. So if a case ever makes it past the Trump appointed republican activists in the circuit courts, it will then be judged again by the republican activists on the Supreme Court. With power ingrained like that in the courts for twenty or more years, it's no wonder the republicans aren't too worried about losing their majorities in the house and senate.
3
Hearing the president chide women has provoked my own memory of an event when I was an 18 yr old art college student with a professor. He asked if he could photograph me. I felt honored and said yes. I met him in his studio... a room with no windows and a 4x5 camera on tripod, I understood this was going to be an artistic shoot, and would be in the nude. The room was warm to make me comfortable. I had visions of Edward Westin’s beautiful nudes, and the historical record of the female as subject through the centuries. It was in this context I was comfortable disrobing. The shoot lasted about an hour, and the professor directed me throughout, “turn”, “chin up”, “look directly at the lens...”, no physical contact occurred.
After the shoot, I dressed and asked to see the images after he developed the large format film. The professor said “ There was no film in the camera”... What? I was totally confused.. and supposed that this is what art is about, maybe this is what “conceptual” art is ? confused It was 25 years later in therapy as I related this event. ,“Don’t you see this was an abuse of power and trust? I was stunned and flabbergasted at how obvious my therapist’s observation. I came to believe this as true and I expect many are scanning their past and recalling and naming their experiences for what they are: sexual and or abuse of power.
3
What do you mean the SCTUS ‘risks a crisis of legitimacy’?
It’s not risking anything; it IS in the midst of a full-blown ‘crisis of legitimacy’, right now, today. It’ll continue and with the Kavanaugh mess may become a deeper crisis coming to a nasty head. Indeed, this column’s own facts illustrate it. America, even its most respected, credible media, shows an astounding reluctance to admit or explain how very much damage has been done to its ideals, its constitution, and its most important institutions. Nor do many seem to reflect the obvious: there’s no going back, no ‘kiss it better, mom.’ The nation’s destiny, whatever it may be, has been inalterably changed.
2
Why do we need a supreme court? Why can't it be left to the lower courts to make the decisions? Why do we have lifetime appointments? After the court made the decision to have George Bush as President and then the totally ridiculous excuse for Citizens United ,the court lost any credibility it ever had. And as for Clarence Thomas, he should be impeached.
1
In long history, the Supreme Court made some nasty and ugly decisions but most of the time it has been the last shelter for common people. But since Bush v Gore, the court has lost it respectable image. It has become a political organization for the Republican party. The judges are anti common people. This institution protects the rich and corporations. The judges are acting like extreme right political hack. Very sad.
1
When George W. Bush's daddy's buddies on the Court appointed him President, despite the fact that he had lost both the popular and electoral vote, that was pretty much it for the Court's legitimacy. If this had happened in some "benighted" 3rd World country we would see it for the corrupt act it is. Because it happened here we are somehow supposed to consider it a "legitimate" part of our constitutional democracy. It was not. It was a political coup.
2
I fear that all our checks and balances are failing to salve the conflict between increasingly Socialist and Libertarian cultures. Instead, the wound deepens.
3
Evidently, Mr. Leonhardt thinks that a Court that forces drastic liberal changes on America, changes that could never be passed by democratically elected majorities in the Congress, are just fine, but a Court that says no, such changes are the province of our elected representatives, is illegitimate. How curious.
2
Maybe because that "democratically elected majority" is anything but. Apportionment in the House was artificial capped a century ago, and a majority of the Senate represents just 18% of the population. If we had actual, equal representation, the GOP would be dead in the water, and we wouldn't have to argue over whether or not gays have equal rightz
1
I lost all respect for this SCOTUS with the Citizens United decision, anyone with a brain would never call a corporation a person and provide them the unlimited power to influence legislation and elections.The Republican legislature and Mitch McConnell specifically lost all honor and integrity when they denied a hearing on Garland. I worry a lot more than just about the future of our Supreme Court, It remains to be seen if trump will be successful in becoming a fascist dictator thereby destroying our democratic experiment.
4
@Steve
And Kavanaugh will protect that ruling, after all he accepted donations for his $million media blitz on TV ads from 45committee, a dark money organization. The same one who funded Trump ads and his cabinet in 2016.
1
Anything that gets to the Supreme Court is not a slam dunk and requires more than reading the law and calling balls and strikes. Theories of interpretation are efforts to understand what that something should be, but they're a work in progress. Maybe someday they won't be, and the work of justices really will be mechanical. Don't know if that will be good or bad.
The court has no legitimacy. It is a political body and in 2018 it represents the interests of white male privilege and religious zealots against those of a diverse number of groups who believe America is a collective of social and democratic interests.
3
At least since Citizens United in 2010, the Court has lacked respect among those who who care about Constitutional values and democracy.
117
@Michael Olneck TBH I think Supreme Court issues point to a Constitution 1.0 that needs revising because America and its people has changed so much. There are built-in technological assumptions for crime, enforcement, government communications, voting, and WHAT RIGHTS are most important that are vastly outdated (e.g. not really such a thing as identity theft in founding days except as easily disproved thing of the moment).
Moreover, technology and population diversity and density have changed the basic American dreams and what can be done without stepping on someone else's life environment. While Constitution 2.0 should preserve the general aim of 1.0 -- there are things that were once rights that might need to be less "absolute". And things now outlined as mere acts that should be in main Constitution (e.g. equal rights concept though not detailed or specific implementations). I'd probably add some curtailment of corporate office holder legal immunities.
In the founding days and for almost 100 years after, if your neighbors beliefs or practices irked you -- it was a very feasible option to move to a wilderness where your nearest neighbor was 50 miles or more away. That Constitutional hidden assumption is no longer true.
1
British people have the monarchy. Americans have Supreme Court. One is an outdated institution that lost its relevance a long time ago. It's only useful in bolstering economy by selling its royal brand. The other is losing its relevance fast. The court has been made up mostly of white men and some are in their 80s. Most of them went to the usual Harvard, Yale, or Princeton. Most of them are Catholic, for some reason. We need justices who went to a state school, maybe raised by a single parent, maybe was an immigrant, etc. The court must reflect the diversity of the people it serves. I now look at the court that may include Kavanaugh. Even before the sexual assault allegation, I was dismayed that there would yet another devoutly Catholic, white man, educated in Ivy League school. That kind of court does not reflect me or the community I know.
1
I totally agree with Mr. Leonhardt. It is so sad to watch our highest court stoop to political means. Something must be done; if they cannot do it themselves, then term limits may help. If only all would grow up and do their jobs.
1
The balance of power was intended to be 1/3; 1/3; 1/3. But history has shown the Supreme Court to weigh in at 1/2 against the other 50%. How? By using the same technique the Russians use - that is using time to its advantage by waiting out the rotation of presidencies and congressional officials.
Qualifications to be a Supreme Court Justice?
1) To be a patriot (not necessarily a jurist);
2) To be party unaffiliated. (Bias comes with affiliation);
3) To be educated in common sense not institutionalized.
4) To be religiously dedicated to Freedom;
5) To be inexorably connected with the common man;
6) To be isolated from the judicial procedures; political ramifications; and proceedings of lower courts;
7) To have no historical judicial decisions on which politicians can lay claim. (Can't previously been a judge);
8) Can be removed from office at any time by the people. (Not by Congress or Executive Branch);
9) Capable of true discernment between good and evil.
I gave up on the legitimacy of the Supreme Court in 2000. Anyone who watched what was happening with an objective observation and an mediocre sense of where the Supreme Court should and should not intervene witnessed a highjacking of justice. The Florida ballots were a state issue. Subsequent to that hijacking, we have witnessed more 5 to 4 decisions that were crucial to moving forward than one could care to count. It is evident that court is not impartial; it is a political entity and the party who gets the judges they want are pretty much assured that they will receive the outcome they hoped to get.
The sad part about this whole dilemma is that the majority are controlled by the minority. This is never the real outcome of a true democracy. It's a manipulation by people who only care about making sure they have their way. They couldn't care less that they are feeding the flame of resentment and discontent to most of the people in the nation. I could never understand why poor, working class people would vote for someone who doesn't represent their interest. The only thing that I could think of comes from Kentucky. It's Mitch McConnell's state. He sure has brought a lot of insurance company, medicare and health industry jobs to that state. And as long as he does that, the people don't care about the injustice that is done to the rest of the nation. We, as a nation, need to start paying attention to the jobs that are brought to each state and who represents that state.
4
Coming apart? This is just the end. If they are so supreme why don't the current justices chime in on this new team player, or is there a convenient law against that? I'm sure there is as it would make sense.
1
@NewsReaper Current Justices should not get involved in the process of selecting new Justices.
The problems that Leonhardt, most commenters here, and Progressives appear to have with the Court is that they lose so many decisions. Many conservatives think the same.
Contrary to the perception by the Left expressed here, few decisions are 5-4. Many more are 9-0, 8-1, 7-2, and 6-4. Most decisions are of virtually no concern to the public at large, and a good number remand cases back to lower courts.
Cries like these for term limits or court-packing reflect the Left’s belief that they should always win - or else something must be wrong with the process.
Rather than those partisan non-solutions, we need to elect better members of Congress who will pass legislation that is easily understood, functional, in line with settled law, and have a consensus of public approval.
5
Hmm, funny but I don't remember seeing articles about the 'partisanship' of the Supreme Court until this moment where it might shift from a reliably progressive to a conservative viewpoint. Why, what a coincidence
6
We recently had a rules-ignoring federal government, too.
But we always had our Supreme Court putting law and justice ahead of politics, and that is what saved us until law-abiding political leadership was returned - as we knew it would.
You are not so fortunate in the US, because you have politicized your Supreme Court and once you have done that, your foundation is destabalized.
As an outsider looking in, it is clear to me that the problem begins with the fact that your system intentionally politicizes the people by making them register a political affiliation as a first rite of adulthood.
And it goes on from there, with many people's understanding of their civil responsibility limited to rah-rahing for the red or the blue team.
That's not political engagement - that's a recipe for a Trump government and a Supreme Court that puts politics ahead of justice.
I know of no other first-world country that mandates political allegiance. It strikes most of us elsewhere as strange and unnecessary - even dangerous.
I'm at a loss as to what to suggest you do to return to stability, but somehow, the adults must put down their pompoms and act responsibly again, else all really will be lost.
Democracy is hard. It's not a football game you can afford to lose. It's time for the remaining adults to stand up, put aside their team paraphernalia and do what is right for the country.
@Michele K There is no rule in the US that you have to pick a party affiliation. 43% of all Americans report as being independent. A person can vote for whatever candidates they choose, even if that means voting for a mixture of Republicans and Democrats and/or 3rd party all in the same year. When voting in a general election, no one asks you what your party affiliation is.
1
@John
But they don't - they're at the very least, 'encouraged' to register with political parties.
That doesn't happen in the rest of the civilized world.
We don't see ourselves as red or blue first, but as Canadians or Germans or Mexicans.
That's the difference, and it is significant.
Recent decisions have greatly skewed the election process to favor Republicans, who are more right wing now than ever. Voting rights laws have been nullified, campaign finance laws discarded in favor of the "money talks" fec vs united decision. And the court recently passed on a gerrymandering decision, where an obvious resolution was at hand. None of this bodes well.
That Medicaid under the ACA, where the federal government paid 100%, was not by law mandated for every state, suggests that the majority there had a secessionists mentality. That it was the Southern states that refused also suggests a strong element of racism, and under Court approval.
Where the writer is confused is in the proper responsibilities of the Supreme Court. The Court is not meant to reflect popular polls or the will of the people. The Court is meant to be the final arbiter of the constitutional meaning of the law. In as much as one party may wish to reinterpret the law according to the changing desires of the population, that group is likely to be increasingly disappointed in the Court. Popular opinion, morals, nationalism all sway like a pendulum over time according to the tenor of the people and the times. The Court moderates those swings through maintaining the constancy of law rooted in an unchanging Constitution. Those calling for an end to the Electoral College, for the preferential treatment of specific sub-populations, for the end of universal due process or for the confiscation of firearms are likely to be forever disappointed by the Court.
5
Term limits for justices is a start but who is picking the nominees in the first place? Not anyone in government. Roberts and Kavanaugh were selected and championed by the Federalist Society which is a Charles Koch sponsored organization. We need a balanced congressional group to put forward nominees. Not a billionaire doing his best to stack the court with his personal favorites.
3
This is the best article I have read of late about the state of affairs with the Supreme Court. I have been disheartened that the one institution in America that rose many times in the past above the worst trends, whether political or not, in the country is now actually creating them. I worry that there is little hope for our democracy due to this trend. I don't trust that Roberts has the ability to rebalance what has happened with this partisan trend, as he has been a major player in creating it.
The Supreme Court has been a conservative institution for most of its history. The Warren Court was a welcome, but brief exception. The Democrats should at least threaten to pack the court, as FDR did. Perhaps the threat will be enough to get the constitutional amendment required to institute term limits. But ultimately, more constitutional amendments will be needed to overturn court decisions on guns and campaign finance.
It took a civil war to overturn Dred Scott. Let's hope we don't need another civil war.
1
I’m intrigued by a possible combination of the Democrats expanding the court and setting the 18-year term limit in the same piece of legislation. Perhaps the judges nominated for the newly created seats could be subject to a public vote for approval...this might take away some of the partisanship of expanding the court.
1
The Supreme Court forever changed the United States from a democratic republic to an oligarchical republic with Citizens United. It was the most damaging decision in the history of the United States. If the oligarchy - Kohn brothers, Sheldon Adelson, Robert Kraft, and others. to name a few - wanted to update the Constitution, which is sorely outdated, Congress would push for it. Same with Tom Steyer, George Soros, et al on the Democrat side. Without term limits, overturning Citizens United, and ending the Electoral College, the future of this country will forever be virulently divided and overtaken by China's dictatorship.
1
Change the approved for confirmation vote to two thirds of senate required. This will force a more bi partisan vetting of candidates, and make the court more moderate a reflection of national opinion.
1
Currently:
25 of 100 Senators are aged 70 or older.
44 of 100 Senators are aged 65 OR older.
More than HALF (64) of 100 senators are aged 60 or older.
More than half of the Senators up for reelection in 2018 will be over the age of 65.
The median age of currently serving senators is 63 years, 74 days.
The average age of Senators at the start of this congress is 61.8 years and of Representatives is 58.7 years.
The majority of congressmen (and women) hark back to an era where television was black and white and computers were made with vacuum tubes an are hopelessly out of touch. There is one representative who is 83 and refused to retire.
What does this mean? We don't need term limits. We need age limits. We need to be ruled not by a geriocracy but by people beneath retirement age. There needs to fair mechanisms with which to ensure this.
6
@matty
That's what we've got on our unelected Senators and Supreme Court justices and it works just fine - age 75.
Recommended.
@matty
Gee, that was fast.
As long as we have justices chosen by political factions, SCOTUS will never be impartial. Maybe this system worked when the country was founded but we really need a modern approach to choosing justices and perhaps even consider limiting their terms. For a single president and senate to put people on the court who will serve until their last breath is wrong because it penalizes at least 1-2 generations of Americans with decisions that fail our future.
What if we had an application process to serve on the court and then an unbiased panel to review those applications and then present the candidates to the senate for consideration? Why do so many believe that the president is qualified to make the correct choices? Case in point, trump's choices are horrendous because he is picking people who will fulfill his campaign promises. Is this justice or payback?
1
Another alternative is to increase the number of Justices on the Court from 9 to either 11 or 13. The Constitution, thankfully, does not specify the size. Such an increase would presumably create a faster "turnover" of people serving and should help to alleviate some of the partisan pressure.
I also concur about the term limits idea and have advocated for such repeatedly. This should also be extended to Congress as well. That Senator Orrin Hatch, for example, is still here for a potential vote on Brett Kavanaugh after his earlier confirmation vote of Clarence Thomas in 1991 should in and of itself be a concern for people concerned not only of the legitimacy of the Supreme Court, but of the government as a whole.
2
What I find most interesting about the conservative justices and their supporters is their claim to "originalism". I suppose that means they have been steeped in 18th century English literature and have done at least graduate level work in English linguistics. So they must understand eighteenth century English even better than 21st century American.
Right?
6
@Wolf Kirchmeir: They don't even get what the word "established" meant then, and means now, as in "Ben Franklin established that lightning is electricity by conducting an experiment that captured a sample of it in a Leyden jar." This is an example of an "establishment of science". Faith-based beliefs, on the other hand, are "establishments of religion", because they are not factually provable.
It started with the Republicans’ hatred of Abe Fortas.
Fascism is the default position with this country. Democracy is the aspiration.
2
Remember that McConnell did the unprecedented of not giving Merrick Garland even a hearing.
Then after Trump was elected, McConnell changed the confirmation threshold from 60 votes to 51 votes.
Without that, neither Gorsuch nor Kavenaugh would be sitting on the Supreme Court.
History will not judge McConnell kindly.
4
For many and certainly for me watching the American justice system operate from afar has created the very strong impression that judgements coming down from US courts, not just the Supreme Court, are about scoring political points first and adhering to the law second. Remember we only get to see the fireworks abroad. The current noise around the latest Supreme Court nomination only goes to firm up that perspective. I am certain that reality on the ground is (hopefully) more nuanced. Why should Americans care about what us foreigners think about your justice system? The image of the US abroad is fundamental to its ability to exercise soft-power and its ability to influence other nations to see the world through an American lens. The current GOP and its leader, Trump, may not see this as very relevant right now, they seem think that using a big stick is the only thing that counts. However, if as a nation you want to be trusted then trust in your judicial system is crucial. Does the US really want to get the reputation that the outcomes in its courts will always be informed by America First, that the morality supporting such decisions will always be informed by white, evangelical values? I think that even a hint of such a reputation emerging would be hugely damaging to the US and its ability to sway world opinion. It could adversely affect business and contractual relationships if a belief emerges that the American will always win in an American court. You don’t live in a vacuum
3
Has anyone thought of a constitutional amendment requiring that, in addition to a majority of Senators, a candidate also must win the support of a defined minority (a third?) of the minority party Senators? This would favor the selection of centrist justices. POVs welcome!
1
@Harry As a practical matter, the filibuster required some consent from the minority party to get senate approval of a judicial nomination. We did away with that.
1
The SCOTUS has demonstrated poor performance well before the fall of 2000, especially with Clarence Thomas affirmation, but 2000 was when the cracks really started to show. Then, the cracks became major fissures with the Citizens United ruling. Since then its been all downhill. Just another partisan squad. I don't trust the SC to do the right thing any more. We have lost a major part of our democracy, if we can still call it that.
1
I think the Supreme Court has already lost its legitimacy. It's totally political and presidents and politicos use it as a tool to get their way. Term limits need to be a matter of law for the same reasons as lawmakers and presidents have them.
2
I am totally beside myself trying to understand what the Supreme Court has to do with global warming or stagnant living standards. Do you want them to make these things illegal?
To me this very mention is an indicator of how off-track people's' expectations are for the court. And this is in your hand-picked Op-Ed piece! Income distribution is decided by economic performance. If there is any further role for intervention it is a legislative one. While I would not like to see Roe Vs Wade overturned, this matter should really be decided legislatively and the point of worrying about Roe V Wade is that legislators do not want to be put on the spot to vote to make it literally the law of the land. We have a Congress that wants the supreme court to do their work for them.
Curious how all of a sudden when the court is not packed with liberals it is all of a sudden dysfunctional...
4
@robert brusca
The Supreme Court comes into play b/c it declares laws unconstitutional, like important parts of the Voting Rights Act, the ACA, campaign finance limits, law protecting union rights. It will be called upon to decide the extent of the government's authority to regulate the environment, wages and work place safety. So even when the legislature acts, which is rarely these days, the Supreme Court gets to put a thumbs up or down on what those laws mean and whether they can be enforced.
1
All the Supreme Court Justices should be instantly fired for being openly biased toward the working class.
If all of them believe that any Justice at age of 85 can perform the job better than anybody else in this country, then they subconsciously believe that everybody else should be working till the same age in order to receive the Social Security benefits.
That’s why they keep ruling constantly in the favor of the corporations.
Their hubris and ego are forcing them into the wrong conclusions in order to protect their own jobs…
2
Thank you for recognizing the Supreme Court is now an arm of right wing Republicans and assorted oligarchs rather than an independent champion of justice.
2
Of course the Supreme Court is coming apart. The whole Federal Judiciary is coming apart since McConnell is using the razor-thin Senate majority to “transform the federal judiciary”. Based on the census of 2010 the 49 democratic senators represent states with a population of 43 million more than those of the 51 Republican senators in the Senate majority.
Do Republicans really think the people of this country will respect courts whose judges have been rammed down their throats by a minority without any consent and those who have been installed with blatant manipulations as Gorsuch's case?
2
@Hellmut Meister....You make a good point. If appointing a Justice to the Supreme Court took a 2/3 vote from the Senate the nominees would come much closer to bringing a non-partisan approach to their job.
1
Let’s just state the truth. The recent appointments to the court are radical, Theocratic fascists. Michael Moore said it right. Our democracy is in danger right now. The current Republican court members are zealots who will say anything to impose their shira like distorted Christianity. They favor corporations over people and representative democracy. The fact is that they don’t want or care about justice and truth. I say all this as a white male Christian lawyer. And the Democratic Party sits fiddling while the rule of law is destroyed. There is a saying that all democracies contain the seed of its own death. We are getting close when the Supreme Court stands silent while Trump attacks the press as the enemy of the people and our law enforcement as criminals and attacks the first, fourth and fourteenth Anendments.
7
The Court is highly partisan but for whose benefit? Partisanship ensures that the most modest minority can maintain the greatest power. The will of the people and the logic of law are secondary. Certain members of the Court behave as if they are protégé's of partisan interests, rather than being patrons of the law they serve. The Citizens United decision is a perfect example, a gift to men like Charles & David Koch delivered by hand picked disciples. This illogical decision has been a bust for democracy. How has it changed the outcomes of elections? Knowing this, what can we expect from an even more partisan Kavanaugh? Or from Gorsuch with regard to labor? Will term limits for Justices do anything to change they way a partisan appointee thinks? Isn't that why they were nominated in the first place, to deliver an outcome, not to call "balls and strikes"?
4
I am a child of the Depression with a vivid memory of its history.
FDR didn't make many big mistakes but he made them. The worst; Herding patriotic Japanese Americans into concentration camps and a delay in mounting rescue missions for victims of the Holocaust.
Though not tragic, FDR's effort to "pack" the Supreme Court by expanding its size constituted an outstanding political failure. So I wonder if there was something in the water that led the usually sensible David Leonhard to call for Democrats, once they get a Congressional majority, to pack the Supreme Court. Term limits also make sense.
I hope the Chief Justice recognizes the wisdom of lowering the partisan tone of the court..
4
Is the Supreme Court broken? This says it all:
"Already, the Roberts court has often shown itself to be zealously activist. It has thrown out bipartisan legislation on voting rights and campaign finance. It has overruled decades-old precedents on labor unions, antitrust and criminal justice."
Chief Justice John Robert prides himself on being impartial, saying all he does is call balls and strikes. Overturning these and other important cases of "settled law" is too big a body of work to call the Roberts Court it impartial. And now the President Trump has nominated another highly partisan actor, and refusing to release 97% of his paper trail of his time with in the Bush II White House.
And now Trump and the Republicans refuse to investigate credible charges against Kavanaugh. One could ask "what are they hiding?" but the answer is staring Americans right in the face.
3
@Jon Pessah.... "It has thrown out bipartisan legislation on voting rights and campaign finance."...I agree with your statement on voting rights, but not on campaign finance reform. As important as campaign finance reform is, you can't argue that something is legal just because it is good for the country. Corporations are associations of people. True, the purpose of their association is to make money, but how can you argue that they are different from other associations with different goals, Sierra Club or Audubon Society for example.
1
@W.A. Spitzer I see your point. BUT, I think we have to apply a common good clause to this argument. I just don't see Walmart and the Sierra Club as the same kind of organization. for one, the Sierra Club doesn't finance politicians and laws that effectively shut down unions, silencing a lot of voices.
That said, right now I would settle for transparency. Why are the companies we now treat as people allowed to keep the funding for their political speech secret?
I have never said nor believe the Democrats don't own part of this problem. But it seems like the Republicans work very hard to keep thing what they are doing in the dark.
This is the politicization of public institutions fondly desired by the Right wing for a very long time. They have learned nothing whatsoever from the German experience in the 20's and 30's when the National Socialists slowly took over the structures of social life, not of Russia in the same time when the same things happened from what was supposed to be the other wing. They both seek the same end; total control of all our ways of living together in the name of 'higher values' and 'better ends'. That they do not see, or choose not to see, that is a short and long term cost to their desires is interesting. Mostly its says that they expect to win and devil take the hindmost. The cost of winning, of course, is that there is no real future except escalating violence because the intermediary institutions that mediate our emotions and commitments are no longer effective or even useful. Thus, the argument, like Stalin and Hitler, that they are creating the conditions of people and harmony and exactly wrong. This is not just shameful, though it is that, this is evil.
3
Riding above (atmospherically speaking) all of the political machinations, as the author pointed out, are the dark clouds (or lack thereof) of climate change. What good is a lifetime appointment to the Supreme Court if your coastal get-a-away home becomes an artificial reef? Perhaps we need a Supreme Climate Change Court. The people appointed to this court could be drawn from an existing pool of highly qualified individuals. They are commonly referred to as sane forward thinkers. Their charge: slow down, halt and eventually reverse (if that is still possible) the devastating impacts catastrophic global climate change will have on conservatives and liberals alike.
1
America is leaning to be just another third world country- its government being corrupt and biased. As years go by, it grows worse. As everything crumbles our corruption and hate grows twofold with our current "misleading" ignorant president . This white house specializes in extending the corruption and nepotism. Growing tired of our current day fiasco with lame politicians following suit. Losing hope for our America. Sickening to continue to read all about our problems, every hour, every day.
1
@Margie W
Now Margie knows how fully half the voters felt about the Obama administration with its secret deals with Iran and the most secretive president in our history.
1
You have a guy with this problem.
It gets announced to the world.
He’s appointed to the Supreme Court.
He arrives for his first case wearing a brand new SCOTUS robe.
Then ... what happens?
Just asking.
https://www.huffingtonpost.com/2009/06/05/the-making-of-a-scotus-ro_n_21...
1
Hello? The whole country is coming apart! Where is our Constitution, our THREE EQUAL branches of government, and the separation of church and state? I have NOT voted for evangelicals - or anyone else in "the base" - to usurp all the powers in my country. We ARE the laughing stock of the planet; see how the UN members regard us lately? It's time to bring decency and morality back. Men who degrade women - and brag about it - are pigs and have no place in our government. The idea that every evil (hypocrisy, xenophobia, misogyny, racism, anti-semitism - yes, we have them ALL, folks) is not only tolerated, it's encouraged, as long as "the base" gets their Supreme Court choices, is RIDICULOUS. Americans, please do something already!
6
Any “fix” for this sordid situation may get a Band-Aid. What the country needs is a replacement heart. Short of that, a bypass? aortic or mitral repair?
Further consultation needed, but we could start with Electoral College reform.
(Smithsonain.com) “The Electoral College polarized Americans from its inception. Created by the framers of the Constitution during the 1787 Constitutional Convention in Philadelphia, the College was put forth as a way to give citizens the opportunity to vote in presidential elections, with the added safeguard of a group of knowledgeable electors with final say on who would ultimately lead the country, another limit on the burgeoning nation’s democratic ideals.”
6 States with Fewer than 1,000,000 voters?
Delaware, South Dakota, North Dakota, Alaska, Vermont, Wyoming
Median number of voters for the 50 states?
#25 Louisiana 4,684,333 voters
Top number of voters for the 50 states?
#1 California 39,536,653
Does our inherited system make sense in 2018?
“Something is rotten in Denmark?” NO.
“Something is rotten in Washington, D.C.” but worthy of Shakespeare.
3
@MGL The whole idea of having separation of powers and separation of federal government and states is to prevent the majority from doing anything and everything it wants.
So just because a state has a smaller population than California or New York doesn't mean it should have fewer votes in the Senate. The House represents the People. You don't hear people in Montana complaining about their single representative compared to California's fifty-three!!
Why do people suddenly think that federalism and separation of powers are bad ideas?
Leonhardt had no problems at all with the Supreme Court when it was upholding rulings that allowed the state to forcibly seize a person's home so that it could be sold to a developer, to increase municipal tax revenues.
As long as the socialists were winning he was a happy bunny.
Now, the socialists are losing and he is an unhappy bunny.
It is a good day.
4
Your “point” seem inconsistent with your conclusion. Do you believe the developer should be able to seize the little guy’s property?
1
@BBH
Apparently you were overseas, or possibly in a coma, when Kelo vs City of New London was handed down.
It was an eminent domain case. The developer wanted the land for contiguous construction. The city forcibly seized the home from the homeowner via eminent domain, claiming that right because the development would generate more property tax income than the home.
The developer, in the meantime, went elsewhere and the project was never executed, and the home was destroyed in the meantime.
It is the loss of the leftist cabal that delivered that decision, that Leonhardt bemoans, because that is the sort of world that he thinks was consistent with the theories the founders.
So, when Leonhard is on the floor crying and pounding his fists after Kavanaugh's confirmation, it will be Miller Time for those of us who revere the Constitution.
The truth may very well be that this world we live in, these societies we inhabit, and these institutions we create may all get much, much worse before anything changes. But, if mankind decides its had enough and should some day become enlightened, thoughts of the kind in this article may help guide us. For now, we are adrift on a river of chaos headed for a precipitous drop. So much so that the idea of fixing the Supreme Court's ultra partisanship seems positively quaint. Have you seen how deeply radical Brett Kavanaugh really is. Its beyond frightening. Of course he is a rapist, he's also a political thug. What did you expect from someone and contemptuous of his fellow Americans. Kavanaugh, in the end, is just another overgrown spoiled brat who apparently did well on his LSAT. That's it.
What Dr. Ford and others are bringing up, and how they are being dealt with, casts a glissening light on the "city upon a hill". How will it eventually deal with victims of sexual assault?
There are still scores and scores of these assaults unknown, as they were hushed up one way or the other. Only by now, you no longer can look away, without losing your dignity either.
As a result, and from where I stand, an institution can establish its "supremacy" just by being decent, when it comes to sexual assault.
Oh, the sanctimonious hypocrisy of McConnell and his crew when they accuse Democrats of foul play with Kavanaugh. Wasn’t it all’s fair in love, war and Supreme Court nominations with Merrick Garland?
4
Translation: Now that Democrats are losing, we must destroy our institutions.
4
The Democrat are winning, but the Republicans are somehow in charge. That is why the country is in chaos, and the majority doubt Democracy. They have good reason to reject the GOP and everything they do. Merrick Garland.
1
@noseitall Cheating and stealing and lying and raping is not "winning". Just to be clear.
1
@RCJCHC - I was not talking about Bill Clinton.
Since Obama's SCOTUS pick, Judge Garland, didn't get respect or a hearing, this court now is illegitimate in my eyes. Did the Mitch and O. Hatch party think no one would notice? What a bigly sad farce this country has become.
6
It's somewhat rich that liberals now find themselves decrying activist courts, when in the mid-20th century liberal justices were the very embodiment of judicial activism. Don't get me wrong, I think that Supreme Court decisions like Brown vs. the Board, Miranda v. Arizona, etc., were correctly decided and major steps for the advancement of liberty and justice for all in this country. But in doing so, the liberal activist judges opened the door for conservative judges to become judicial activists if and when they came to power, which is exactly what happened over the last 30 or so years.
Conservative judges may be a bit more forward in their activism, but they are hardly more inclined to push personal ideological agendas than liberal justices. Justice Ginsburg is no less of an ideologue than Justice Scalia ever was, she just happens to be in the minority more often in a conservative-dominated court. David is right in saying that the 'balls and strikes' model of the courts is no longer correct, if it ever was, but neither side can lay claim to having an entirely objective strike zone.
4
"The second major threat to the court comes from the radicalness of Republican-appointed justices." - yes, you know like the "discovery" of privacy that led to abortion rights, and the "discovery" of the right to marriage that led to Gay marriage. Darnit those radical Right-wing justices - oh how they usurp the power of the legislature!
1
Risks! a crisis of legitimacy!!?? I have despised the court since Bush v. Gore.
4
@Chip....Most people don't understand the Bush v. Gore decision. What the Supreme Court did was to vote not to overturn a decision by the Florida Supreme Court (which was in fact composed mostly of Democrats) to halt the recount on Dec. 12. What they further don't know understand is, the same Florida Supreme Court up held an earlier Gore petition not to allow the Florida Secretary of State to declare a winner as prescribed by Florida Law. The process of not declaring a winner before the two county recount was completed (as requested by Gore) delayed the initiation of the state wide recount which is why it wasn't completed by Dec. 12. In fact attorneys for both Bush and Gore had agreed before the Florida State Supreme Court that Dec. 12 was "the drop dead date". By asking for a delay in declaring Bush the initial winner the state wide recount could not be completed by Dec. 12, a date to which Gore's attorneys earlier had agreed was the dead line. The truth is, Gore cooked his own goose.
Risks a crisis of legitimacy? Oh please, that point has long been passed. Who, outside of perhaps the moral sewer of elite law schools and George Mason, thinks the Supreme Court is anything other than a powerful political arm of the oligarchy. Citizens United alone should be enough to tell one that this thuggish court is anything but legitimate, all the frilly cover stories notwithstanding.
4
Funny how the court didn't risk a "crisis of legitimacy" when Barack Obama used ideology and identity politics to name two of the most liberal jurists in America to the High Court in Kagan and Sotomayer.
Sound like it is more a "crisis of people who don't agree with me" for David Leonhardt.
Don't worry. Once Democrats run the government again, the New York Times can start advocating for adding more seats to the court the way FDR wanted to -- 11 or 13 should do it. That, of course, will in no way be a "crisis of legitimacy." Just good clean politics.
6
Merrick Garland is all that needs be said to refute any conservative "argument" on this subject. Merrick Garland.
1
The Roberts court is illegitimate.
2
The liberal DEMS have killed the US Supreme Court. It's blood is on their hands. This is what the left has wanted for a long time going back to when they voted the end the ballet counting in Florida giving the election to Bush.
1
This may come out rather disjointed. Bear with me.
Partisan clouds lowering over the Court? What else is new?
I give you Thomas Jefferson (Democrat-Republican) and John Marshall (Federalist). Two men at loggerheads. And when the Court issued its momentous Marbury vs. Madison ruling. . . .. .
. . .PAUSE! Stop right there!
Consider how momentous that ruling was. The Court had NEVER been given authority by the Constitution to pronounce upon acts of Congress.
They simply CLAIMED that authority. They have clung to it ever since.
And Jefferson was deeply concerned: that, of the three branches of government, the JUDICIAL branch--
--would end up tyrannizing over Americans. Chipping away at their rights. Ruling the roost.
His fears were unfounded. But there WERE--fears.
Then--the notorious Dred Scott decision. Chief Justice Taney (pro-slavery) jumped in with both hands flailing. To settle the issue once and for all.
HA!
And yet--
--I too am concerned about the direction of today's Court.
And anger of course--implacable anger--gnaws at me over the Garland nomination.
BUT--
--term limits?
Not yet, Mr. Leonhardt. Not yet.
A line of Solon, Athenian lawmaker, rings in my mind. Gerasko d'aiei polla didaskomenos. "I grow old, learning many things."
I cling to the notion of justices growing old and gray. ..
. and wiser. . .and wiser. . .
. .as they do their jobs. It has happened in the past.
I hope it keeps on happening.
.
1
A nice thought in a nice letter, but the people being appointed by the GOP today are rabid conservatives and will remain so until they die. They will not mellow.
Long term? The Supreme Court is already a shambles. A downward trajectory debasing Anita Hill then handing the election to Bush - a good old boys club since day one. Unimpressive. Sanctimonious. Plus a few hypocrites.
3
"a crisis of legitimacy"
yes.... since bush v. gore.
1
This article is 18 years late. The court revealed its naked partisanship in Gore v. Bush.
4
Would things be different if Harry Reid hadn't changed the Senate rules on judicial nominees. He gave McConnell the playbook. A simple majority for SC nominees requires no bi-patisanship. The court was already being looked at as partisan, now it always will.
3
It is only with the recent discussions on Kavanaugh's background that I realized that he and Gorsuch both graduated from Georgetown Prep, a few years apart! Shouldn't there be some sort of restriction on this, for the sake of diversity? I can understand, just, that almost all the SC justices graduated from Harvard or Yale law school, given their prominence nationwide (although, big parenthesis, Ed Whelan abundantly demonstrated that a Harvard law degree, magna cum laude no less, provides no inoculation against laughable boneheadedness!). But high schools are such indicators of social background (here, read: white, male, rich), defining these two as members of a tiny clan of the super-privileged in America. And the GOP thinks there should be TWO of them on the SC?
1
@imhap There are only nine seats on the Supreme Court. Currently one third of the court is Jewish. Catholics are also greatly overrepresented.
But with only nine spots available with rare openings it's impossible and probably unfair to attempt to balance the court demographically.
Option 3. Impeach a few conservative justices.
1
Great idea, but requires a 2/3 Senate vote.
Putin to Trump:
Yes, my friend Donald. Our plan is working.
Such chaos, hatred and divisiveness I have never seen in your country. Good job my comrade!
Trump to Putin:
Yes, aren't I Great, Fantastic and the BEST?
Putin to Trump: Yes Donald but we have work to do to hack those voting machines before the midterms.
Trump to Putin: I've got my family working on that.
2
This trend toward illegitimacy didn't start with Brett Kavanaugh. It started when the Court started deciding controversial issues best left to politics (abortion, gay marriage, etc.). I think we're all starting to give up the charade that the Supreme Court is anything other than a political super-legislature. That's really a tragedy, but the Justices brought it upon themselves.
I'm reminded of Justice Scalia's famous last sentence in Obergefell v. Hodges:
"With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence."
5
So let's stop letting politicians nominate and confirm justices. Establish a bi-partisan commission to vet and choose them. Appoint representatives from the Justice Department, retired justices, constitutional law academics, and others out of the political mainstream to the commission. Let's also get a better definition of what "follow the law" actually means. A literal but tortured reading of the Constitution, or a more practical interpretation that takes into account modern cultural norms?
1
Either the Supreme Court Justices should retire by the federal law at age of 65 or all the fellow Americans shouldn’t be entitled to receive their Social Security benefits till the age of the oldest Justice, Senator or Congressmen, currently standing at 85…
Anybody working for the US government in their seventies strongly believes that the rest of taxpayers should be doing the same…
If they can do it, you can too!
Why do you keep voting for such politicians and Justices?
1
In the mid-20th Century I understood conservative and liberal to be adjectives which described priorities applied to the philosophical discipline of analyzing and evaluating alternatives.
Conservative generally referred to a tendency to be cautious and prudent; "do no harm". Liberal simply meant being open-minded in considering various alternatives; "fair hearing for all". There is no inherent conflict in those principles. Applied in concert, they can result in a thoroughly reasoned, ethically scrupulous agreement.
But our language has been corrupted by changing the terms from adjectives to nouns: Conservative and Liberal are now the names for combatants in the pursuit of power that are more accurately identified as the hard-right wing of the GOP and the Rest of Us.
The GOP does not deliberate; they manipulate and they've been alarmingly successful at it. By pandering to the fears of a largely bewildered and worried demographic (whom they also betray) and selling out to financially powerful corporate interests, they control two branches of government and they are on the brink of driving one more stake in in the heart of the Judiciary.
Unfortunately for the character of our nation, the potential for timely electoral corrections (though too often suppressed) cannot address the lingering threats of lifetime appointments to SCOTUS.
"Conservative" is a misnomer. What's conservative about being anti-abortion, anti-labor, and anti-transparency in elections? The "conservative" justices are merely pro-moneyed elite, their buddies, not conservative.
5
Things wouldn't be so bad at the Court if Clinton had been elected.There would still be four right-wing, activist but jobs on the Court, but their damage would be limited. Our country would be moving forward, instead of undergoing the destruction of all the liberal programs that people fought for over the past 50 years. There is a chance to limit somewhat the damage done in the last election in November if their is Democratic unity. I hope it will h as open, but I fear the same thing will happen as did in 2016.
3
It would be nice if we could agree to always keep the court ideologically balanced within 5-4. Otherwise, how is it not politicized?
1
Rural American elected Trump to get the justices they wanted. Strange, that all of the rulings, other than guns, gays and abortion, will come back to hurt them. Add two justices now. It will actually help them.
2
Those who oppose women's right to choose care more about imposing their personal religious beliefs on other Americans. The erosion of Roe v. Wade by the Supreme Court over three decades increasingly sides with religious Americans and less for women—favoring those opposed to individual decision-making and denigrating an individual's right to choose. Roe v. Wade has been for many women in America effectively overturned already.
The Roberts court, whether or not Kavanaugh is confirmed, will continue the gutting of Roe v. Wade until it is, in fact, no longer the law of the land.
As with the increasing influence and powers enjoyed by corporations in America, and the concurrent erosion of individuals' power through the ballot box and other processes, the power of money, and the increasing political pressure brought to bear by groups of individuals, acting as de facto collectives or corporate interests, reduces individual freedoms in America, Roe v. Wade representing one immense example.
America continues to move away from the creation of a more perfect union and towards feudalism—those with the money have the power; those with money dictate what and what not a person may choose for themselves, including their body.
Woe be in the U.S.A.!
2
The query is not that the legitimacy of the Supreme Court is gone, but what happens next? Do individual Americans bother to pursue cases that are lost causes? Does the Court hasten the undoing of Congressional laws as soon as they are passed, in perpetuity? I believe that this long arm of democracy is nearly dead and gone. Kavanaugh's nomination is a walking corpse, made in the sad, same image of the institution he will be serving badly.
1
Once more we see that the hallowed US Constitution is far from perfect. I read in the NYT or Washington Post a few days ago that the deeply-red 22 least-populous states in the US have an aggregate population approximately equal to California. Those 22 red states are awarded 44 senators by the Constitution, whereas California, which ALONE is the *fourth largest economy in the world*, receives a paltry two senators. When this country was founded, the wealthy agrarian slaveholders insisted on receiving lopsided representation for fear that the more modern and populous non-slaveholding states would interfere with their slave-labor fortunes.
The Electoral College is profoundly anti-democratic, having been created specifically to prevent the local yokels (meaning anyone who was not a wealthy landowner) from casting direct votes for president, because they were considered unworthy and unfit to do so. And so we end up (as in 2000 and 2016) with electoral college victors who the people voted against! That's not even pretend democracy.
And unfortunately, because the small-state advantage is so thoroughly baked into our Constitution, it can likely never be repaired. In fact, the Constitution forbids altering the small-state advantage. And, in any case, how many little red states are going to be willing to give up their disproportionate political representation?
2
Mitch McConnell says denying Obama’s chance to nominate Merreck Garland is his greatest accomplishment. I wonder what Mitch thinks of his dereliction of duty regarding his Presidental oversight obligation. Mitch probably will not be kindly judged by history.
I don’t think mitch loses any sleep over it. He is the epitome of the soulless minion serving his master.
Risks?
This court has already PROVEN to be post-legitimate.
This court is supposed to be filled by already-elected representatives, not by "waiting" until voters vote in upcoming elections. That was McConnell's ruse, and no one called him out on it.
This court was designed as a third, INDEPENDENT body to rule on fine (and no-so-fine) points of CONSTITUTIONAL law. BUT they are content to pick and choose cases tainted by republican-led culture warriors. Regressives are content to bow to the hyper-partisan "heritage" foundation to sift through and recommend nominees while ignoring the ABA, the top legal professional society in this nation.
Regressive conservatives have lead the charge of "no one can be trusted to make decisions that don't jive with their political affiliation." That is NOT what this court is supposed to be about. BUT Regressive "conservative" republicans have made turned it into a rubber stamp for regressive realities.
1
In the present rancorous political atmosphere, lifetime appointments to the Supreme Court would seem to be little short of folly. Surely it would be better to appoint justices for a period of 10 years, following which they come up for re-election.
What you have currently is an ultra-conservative majority caucus on the SCOTUS which clearly looks to the White House (and probably their evangelical pastors too) for indications as to how it should decide cases. It seems pretty obvious that this majority's brief is that it should unquestioningly enforce whatever policies the Republican Party may put forward, and thwart any actions on the part of a non-Republican administration. Or, to put it another way, the SCOTUS majority is evidently now the in-house legal team for the Trump administration.
So let's take stock here: your electoral districts are grotesquely gerrymandered; voter suppression is rife; your politicians are in hoc to corporations; the Supreme Court majority is effectively the GOP's legal enforcer; your craven, invertebrate senators and representatives have surrendered their constitutional responsibilities to the Emperor, who is currently stuffing the judiciary with his political lackeys and waging war against the first amendment.
For the benefit of your friends elsewhere, who are watching this train-crash happening: remind us again why you believe yourselves to be the greatest democracy in the world?
The Court's crisis of legitimacy is always in the ideological eye of the beholder. When a string of major decisions accord with your views the Court is the last and necessary bulwark to protect you from your fascistic and fanatical opponents; and of course when the Court's rulings disappoint you the offending justices are seen as intensely partisan hacks, tools of capital, toadies of the ruling class, and so on.
Term limits and court packing are ideas that will pass. What should be restored, though, is a better balance between the branches of government. Put simply Congress should do more and less should be left to the vagaries of Supreme Court composition and its consequent rulings. The judiciary was not meant to be so important that we should we have to suffer through ridiculous spectacles like the current confirmation fight.
2
Washington has been dysfunctional for decades, and they need our help to get SCOTUS nominations of less partisan candidates back on track. Perhaps a Constitutional Amendment could force good behavior, and restore order.
If you are willing to sign the petition, ask two friends to pile on to build momentum. It would take a million signers to get noticed, but change has to start somewhere….
https://www.change.org/p/the-us-congress-a-fair-independent…
Thanks
Greg
Petition:
Supreme Court Justices serve for life, yet can be approved in the senate by the slimmest of margins- just 51/100 votes! In our highly partisan world, this low hurdle eliminates any incentive to select justices with centrist or apolitical records.
Let's improve on the Constitution to encourage consensus and compromise.
The solution is a constitutional amendment requiring a super-majority (60%) of Senators to approve a court nomination. Only then can all Americans look to the Supreme Court as a neutral arbiter that rises above politics.
A 50% vote incentivizes the majority party to push through extreme candidates. A 90% vote holds all nominations hostage to a small minority of Senators. Instead, 60% *was* the common-sense tradition in the Senate- let’s make that a standard rather than a fragile option subject to the whims of the Majority Leader.
The Court has arrogated legislative prerogatives to itself for two generations, yet nobody said that the Warren bloc was partisanship run amuck, even as it invented rights no previous Court had ever even entertained. No, the Left has turned the Court into the ultimate guardian of its ideological agenda, transmuting by some kind of strange alchemy policy choices into first rank Constitutional "rights." Now, when that arrogance of power is being challenged--and its most egregious example, Roe v. Wade, which "moderate Democrat" Byron White himself called an example of "raw judicial power"--we are told that the Court is coming apart, hyperpartisanship is raising, and the Court needs to be "fixed" (presumably to ensconce what liberals imported into the Constitution and now fear is under question). Yes, the Court has been politicized, but do not look at Reagan, Bush, Bush, or Trump as the parties responsible: the Rehnquist and Roberts courts simply have refused to play the courtier's game about the emperor being splendidly clad when his Constitutional garments are buck naked.
I continue to be dumbfounded that some people still want ownership rights over a woman’s body.
Corporations are people, money is free speech, and the 2nd amendment is sacrosanct, unless you show up at a courthouse and have to spend a half hour on line waiting to get through the metal detectors. SCOTUS has been bogus for quite a while now.
2
Step One -- Bush v. Gore, 2000: Scalia elects Dubya.
One of the steps intermediate -- Citizens United, 2010.
Step 2016 -- McConnell refuses consideration of Merrick Garland.
1
Among the several problems plaguing the Supreme Court's crediblity, is the fiction of 'stare decicis', commonly called 'settled law'.
In my adult lifetime, I've seen and heard Supreme Court nominee after nominee tell the Senate Judiciary Committee that the nominee believes that 'settled law' is 'settled law'. The problem is that there is no such thing as 'settled law'.
Here is a link to a list of Supreme Court decisions that have been partially or completely overruled by subsequent Supreme Court decisions:
https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Co...
And here is a paragraph from an article on the Cornell Law School Legal Information Institute website, referencing that paragon of ethics, Justice Rehnquist, on 'stare decisis':
"Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an 'inexorable command.' On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously."
https://www.law.cornell.edu/wex/stare_decisis
It came apart when it accepted Bush v. Gore. Now it is just an embarrassment along with the rest of the US government.
3
It’s not the Justices that are the problem. It’s a 200 year-old Constitution, broad in outline, outdated in reality. We need a Constitutional Convention to update it. To expect any nine people to “divine” an apolitical ruling given that historical gap is out there with my much cited Lennon’s imaginary world.
1
The only thing that will save the United States Supreme Court is to repeal the bill of rights and their amendments and take the determination of the rights of the people back into congress where the resolution of political issues rightfully belong. That would also require members of congress to grow up and learn the art of compromising in everyone’s interests.
But, nah, that ain’t gonna happen and the United states republic is as doomed as the Roman republic it tried to ape.
Many comments forget that the NYT conducted its own recount of the Florida ballots in Bush-Gore 2000. To quote the NYT:
"A comprehensive review of the uncounted Florida ballots from last year's presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.
Contrary to what many partisans of former Vice President Al Gore have charged, the United States Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore. A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court's order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.
Even under the strategy that Mr. Gore pursued at the beginning of the Florida standoff -- filing suit to force hand recounts in four predominantly Democratic counties -- Mr. Bush would have kept his lead, according to the ballot review conducted for a consortium of news organizations.
5
This is a ridiculous position. Democrats would have done exactly the same thing if given the opportunity. I'm a true independent and have no problem voting for good candidates from either Party. The problem is that the Parties are choosing such bad candidates. We wouldn't be having this problem if Kasich was president - or someone else who is smart, focused on solving problems, and understands how to work with others.
@David
No, they wouldn't and it is this incessant regressive false-equivalence that IS the biggest problem.
Kasich is an empty regressive suit and you know it.
1
The Court lost its legitimacy when it appointed George W. Bush President in 2000, along purely party lines.
3
Unless and until there are significant changes in the composition and behavior of the Supreme Court, as far as I am concerned, it has absolutely no credibility and I have little faith that the decisions handed down will be reasonable interpretations of the law. The conservative justices are a joke and they are barely able to conceal their egregious partisan bias.
And your opinion and $3 will get you a basic two-shot Americano at Starbucks. Sans the tip.
Despite your generally excellent columns, David, I think, as a lawyer, that you ducked your duty on this one and gave some very dangerous folks cover. It is unfair to taint Democratic presidents' approach to the institutional importance of the high court with the "partisanship" brush in the face of the extraordinary, anti-constitutional conduct of the Rs as they aggressively and relentlessly turn this one crucial government branch that is institutionally NOT political (not democratically elected) into a legally unassailable political tool of the extreme right by manipulating the nomination process to weaken genuinely open legal analysis of serious issues. Obama nominated Merritt Garland, a Republican affirmed by BOTH sides of the aisle -- clearly a non-partisan gesture, in an urgent, good-faith attempt to shift the dynamic on the court toward sound legal analysis. Ignoring that nomination did legal violence to the advice and consent confirmation process. Then Garland was passed over by Trump in favor of brute Senate-electoral power in service to a minority base. You do a disservice to your readers to reiterate the journalists' seductive "both sides do it" shallowness that uses legal opinion outcomes to suggest mere partisanship. Obama's integrity in adhering to a deeper approach to high court legitimacy in nominating Garland has NEVER been the recent Republican approach. It is institutional corruption, not mere partisanship. Please dig deeper than the party-based formulas.
1
The SCOTUS has appropriately been the object of public mistrust and scorn since 2000 with the incorrect, partisan Bush Vs. Gore decision which allowed Bush to become POTUS- and we all know how that turned out.
Sandra Day O'Connor later said she regretted her vote in favor of Bush but of course, by then, the damage has been done.
Of course, Thomas was on the court and he is arguably the most right wing justice ever to be on the court. His Bush Sr. appointment also should never have occurred and Anita Hill has been widely vindicated for her testimony which should have resulted in another person to be on the SCOTUS.
The SCOTUS has gone downhill from there with horrid and stupidly partisan decisions ever since. Citizens United and gutting the Voting Rights Act are perhaps the most egregious but here is also Hobby Lobby and other decisions that take the country back 100 years.
As David Leonhardt points out, while the country is getting more progressive, the GOP is using the SCOTUS as a tool to hold onto old vestiges of power.
GOP nominees seem to blatantly lie and obfuscate during the nomination process - Roberts certainly did and Kavanaugh is acting by the same playbook.
The SCOTUS has not hold the respect or trust of the public any longer and it will not until such time it reflects the will and values of the majority of people and understand the Constitution lives within the context of modern society.
3
"... [T]he court has become an intensely partisan institution that pretends otherwise."
Yes, but stop and ask yourself why. Part of the blame rests with the New York Times. In the PRE-BORK era, the NYT argued that, in exercising its constitutional duty to advise and consent in court nominations, the Senate had no business considering the nominee's legal philosophy.
But when BORK was nominated, the Times editorialized with equal assurance that the Senate properly had that right -- it opined that confirming a Justice is and always has been a political decision.
The political polarization of the court was inevitable when the court usurped the duties of Congress and state legislatures and pursued its own favored public policies. The most notorious example was Roe v. Wade. Even supporters of a right to abortion, like Prof. John Hart Ely recognized that the decision was bas constitutional law. He said Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”
Ever since, Roe has poisoned the Court. It has become a litmus test for both parties in the confirmation process. That explains, for example, Anita Hill. As Maureen Dowd says in today's Times, "The feminists were less concerned with Hill’s humiliation than with using her as a bludgeon to block a justice who would be devastating on women’s rights." Kavanaugh has been targeted for the same reason.
That is where the blame lies. Never forget.
2
In Leonhardt's panic striken tirade, he loses track of reality... The US Supreme Court is composed of 9 individuals who are no longer constrained by short-range partisan politics. As it takes a monumental effort to remove any of them from office, they quickly learn to apply their individual observations and scholarship to an unpredictable array of topics. Leonhardt is still stuck in an obsolete 20th Century Political frame of reference. "Liberal vs Conservative" is no longer the juxtaposition of legal opinions. Legal debates are increasingly "Past vs Future". Leonhardt sadly favors looking backwards into the frozen past......and argues against change, adapting to the future......
Nonsense. The SCOTUS is undeniably political.
1
@BBH completely misunderstood my point. Its political alright. REgressive. NOT PROgressive. And todays "progressives" are very confused, they want to take us backwards into the past.
It is disheartening that the Republican Party seem content to destroy the public's confidence in a third branch of the federal government, again with no clear idea of where that will lead us. They discredited politicians as "Washington swamp creatures" so as to undermine faith in Congress and drive it to disfunction. They questioned the legitimacy of Presidents to diminish that position. This has led us to Tea Party obstructionism and a flash-over-substance White House. This approach arguably serves the the more powerful members of society with the resources to navigate the chaos.
What will the ramifications be on our society of their latest attempts to extend this destroy-from-within philosophy to the judicial branch? Sadly, I don't think they know, or care.
I argue that the Supreme Court has already lost its legitimacy for the vast majority of the country. Only the most cult-like followers of the Republican party could believe that the court is a non-ideological, serious legal body, weighing opinions based on law and the Constitution. This farce with Kavanaugh is just the latest mummer's show - for all the world to see - that rule of law in this country is utterly meaningless and that the Supreme Court has no credibility whatsoever.
2
@DLeonhardt, I have pushing this model in the comment sections here and in Washpost for the last few months. You are being generous with 18 year terms, why? Why not a 10 year term? There are enough Just Americans who can step in and do a credible job.
Heck, a few AI computers with all the information from the constitution, the articles, the amendments and precedents can do a far more creditable job than all these fake originalists and opinion makers.
Watson the IBM computer is well on its way to replace most doctors, why not a judge?
Until the country can get the courage to make this happen, the Democrats should neutralize an extreme right leaning court by "enhancing" the numbers. Do they have the guts to do it if they gain a majority in the Congress, I don't know.
It lost all legitimacy when judges started being asked how they would rule on certain issues before being confirmed.
Politicians constantly spouting off about the Constitution are usually the ones trampling it the most.
2
It is not a pretty thought, but after the Merrick Garland charade perhaps justified: if the House goes Democratic, Clarence Thomas could be impeached for the his clear-cut perjury during his conformation.
This would of course continue the nasty and destructive course we are now embarked upon. However the blame lies very largely with the Republicans.
1
Nice thought, but the impeachment process requires a two thirds vote of the SENATE for conviction.
If the victory goes to the highest bidder, do we still live in a democratic system?
If the election can be bought by the deepest pockets, are the voters in charge?
If the same corporations donate lavishly to the both political parties, is the outcome of the elections completely irrelevant?
If the money is equal to freedom of speech, would any bank give me a cash for a couple of hours of my voice recordings?
If the corporations are equal to the people and have the voting rights, how come we don’t have the identical genes? How come that the people die and the capital grows forever?
Has anybody in the history of the world equated the people to the money?
Those who claim that president Trump might ruin the Supreme Court balance obviously don’t know this institution lost the common sense and internal balance long ago…
1
"A less palatable option is for Democrats to expand the court when they next control Washington. Given the outrage of the Garland nomination, Democrats are right to be thinking about this. But I hope they don’t have to resort to it, because it would risk a tit-for-tat battle that could do even more damage."
Easy solution to that. They expand the court to 13, along with a requirement that any future expansion requires a 2/3 vote of Congress and that only one additional justice could be added during a president's tenure in office.
In one fell swoop, they could right the Garland wrong, and ensure that there could be no willy-nilly expansion in the future.
They could also pass a law that the confirmation of all federal justices require 60 votes in the Senate.
Don't be so weak-kneed!
I like your thinking, really. But what would keep the next GOP controlled congress from passing laws undoing your efforts?
the democrats finally need to become aggressive about federal judicial appointments: when they have the power, appoint progressives, not moderates.
and, assuming kavanaugh is confirmed, pack the court.
sure, you oppose doing that because it would invite "tit for tat" responses, but right now republicans have shown they already are engaged in "tit for tit"--they are doing everything they can to turn the court into a right wing fiefdom.
if democrats respond in kind, hopefully, republicans will decide to seek a "truce". otherwise, it will just get worse, and the supreme court will become an enemy of the people, just as the executive branch is now.
so, think about it: support court-packing by democrats, hoping they won't have to use it or that strategy will ultimately moderate republican extremism.
the worst thing the dems can do is pretend they're above it all and listen to "reasonable" pundits like you.
1
This column omits the most troubling aspect of the Roberts court - its shameless elitism.
The "justices" have virtually no sense of the America they drastically impact through their decisions. All went to the Ivies - and Kavanaugh, if he slithers through, will be another. There is now a "Supreme Court bar" of about 50 high-priced lawyers who argue most of the cases. Unless you can afford one of those - at around $400,000 per case - you don't have "access" to the Roberts court.
The justices refuse to televise their proceedings because they like to be able to go out in public without being recognized. So much for even a shred of public accountability.
But a silver lining. The public is finally seeing the court for what it fundamentally is under Roberts - a political institution. Let's strip away the veneer of law, it's all politics. At least now we know.
2
The Republican Party cares about power and power only, and does not care how they acquire it, ethics and morality are out the window.
This is the reality, and hoping that Roberts will somehow buck that current is truly whistling past the graveyard.
1
Terms limits is what we need...
When the court was started 1789, the life span of an adult male was 38 years old.
The fact that this was never challenged is beyond....
Come on America I know this is a heavy lift, but we can do it.
Limit the term or re-appoint them every 10 years.
1
You or your readers may be interested in a piece by Daniel Epps and Ganesh Sitaraman that appeared in Vox about this very topic. (https://www.vox.com/the-big-idea/2018/9/6/17827786/supreme-court-packing... They offer two additional possble solutions to fixing the court beyond term limits. I believe make a good deal of sense and deserve serious consideration (which is probably the reason that they won't be).
The Supreme Court accelerated its own decline by its Citizens United v. FEC decision. Since then they joined the “guns for hire” on Capitol Hill who are called upon by the highest bidders (read Koch brothers, NRA, etc.) to “deliver.”
It is now painful to watch how in their rush to “win the case” for their instant-gratification seeking clients they lose view of that “shining city upon a hill” they were supposed to serve.
They're now too far gone down that hill. The only remedy? Vote them out in November.
1
The illegitimacy of the court has been under way for a long time. The court's unprecedented involvement in the 2000 presidential election was so extreme that American's should have taken to the streets. When the dems said nothing and the people barely noticed, the radicals on the right were given a green light.
Citizens United gutted campaign laws and opened the spigots for the outright purchase of the US government. Mitch McConnell's act of treason in ignoring his constitutional responsibility to advise and consent the President's nominee. The final straw was the appointment of Neil Gorsuch. Democrats once again went meekly. If they truly had the best interests of the people in mind, they should have boycotted the hearings in protest.
Gorsuch is an illegitimate justice. Every decision he is part of is illegitimate. As the lower courts continue to develop right wing radical judges, the future becomes darker.
Democracy is on life support but all the doctors are corrupted. It is doubtful the American people will be able to break the partisanship that has robbed them of their power.
3
Easy enough way to solve the problem.
Use the NCAA basketball method.
Arbitrarily change who gets to submit nominees to SCOTUS from the President to the party that didn't make the last pick.
Gorsuch was the repub pick.
Now the Dems get to make the pick.
Clean. Simple. Ends the political maneuvering and game playing.
What better way to insure that the court can't be stacked?
Dems you're on the clock.
Thomas, Gore v Bush, Citizens United -- the trust and respect has eroded already. With Gorsuch, an asterisk justice given the theft of the seat, it eroded further. But Kavanaugh would be a travesty and a death knell.
2
@Andy My "trust and respect" for the Supreme Court eroded with Scalia and Thomas. It was lost with Alito, Gorsuch, and what was done to Garland.
1
The Supreme Court intervening in Gore vs Bush election process was wrong. Citizens United was wrong. Confirmation of Clarence Thomas was the beginning point and the denial of Obama's nomination of Merrick Garland was the breaking point. How do we fix this???? We must change the systems that are no longer pertinent to the year 2018 and beyond.
1
The Supreme Court decision in Bush V Gore destroyed the image of a non partisan branch of our government. Gore won that election as the recount in Florida proved. But the court overruled the will of the people. I viewed it as a coup. Will take generations for the Court to recover, if ever.
1
We have a president who lost the popular vote, colluded with a hostile foreign power to gain office, and would have been impeached a year ago had our house not been gerrymandered. This pretender has now nominated a second Supreme Court justice for the obvious purpose of obstructing further investigations into his high crimes. He has been abetted by a Republican controlled Senate, representing less than 40 % of the population, and which blocked the Obama nominee Merrick Garland to leave open a seat for Trump's Gorsuch. It is now rubber stamping another Federalist society pick. This is hardly what the founding fathers had in mind. Constitutionally expanding SCOTUS is the least Democrats should do in order to dilute the poison McConnell and Trump have injected into the judicial branch.
People bemoaning the partisan pinheadedness of the Supreme Court should be certain that they are doing better than that themselves, or that they have an intellectual/political position that is not just agreeing with the people around them. Most NYTimes columnists cannot say that, for example, don't want that, wouldn't understand it.
Without intending to, the framers of the Constitution inserted two poison pills, the lifetime appointments of Supreme Court Justices and the Electoral College. They are both helping to bring us down.
5
I think you are correct. Every great civilization has peaked and then crumbled. I fear we are no different. Probably won’t happen in my lifetime ( I’m an old guy...), but i believe it will happen..
1
Good !
Hope they save all the theatrics and allow Kavanaugh to withdraw his name.
1
The Supremes showed their hand with Bush v Gore when 5 Republicans in robes bigfooted over the Florida Supreme Court to appoint Dubya President. Even Sandra Day O'Connor later said it was a mistake.
Republicans always whine about legislating from the bench and keeping government close to the people, but with this travesty of justice the SCOTUS stuck it's nose where it did not belong by the US Constitution. States are allowed to determine how their electors are chosen and they ruled for a proper recount. The GOP could not stand for something as important as a Presidential election to be decided by voters, so the Supremes were called in after purging voter rolls and other suppression efforts failed to deliver Florida.
We need term limits on all Federal Judges, a rotation of the Chief Justice position between the various associate members instead of a permanent head, and a voter referendum on all Supreme Court Justices 4 years after seating. There should also be a mandatory retirement age.
I agree that the Supreme Court has become nothing but an offshoot of the Republican party including its extreme positions on politically charged issues. This is not what the founders envisioned when they decided not on lifetime terms. I also agree that packing the court is not the solution for the reasons Mr. Leonhardt stated. Term limits are the only answer although the current justices could do a huge amount of damage in 18 years, I would like to see that number cut in half. I am also leaning towards election as many local judges are chosen. If the members of the Supreme Court choose to act on their political beliefs then they should be elected as all other politicians are. They are already guilty of warping our system of government in deciding the Voting Rights Act needed to be gutted and in the Citizens United case by deciding that corporations are people and have a person's right to contribute to political campaigns. They were either blind to the consequences of their decisions and their ability to undermine our democracy or they simply don't care. I believe that they simply don't care because it advances their political beliefs. I no longer believe in the legitimacy of the court or in their ability to be impartial. We need a constitutional amendment for term limits and election of Supreme Court justices. Something the court cannot declare unconstitutional and the president cannot veto.
The Supreme Court is too small and needs to be considerably enlarged, for many reasons. The Democrats should formulate a plan, so that it is a thoroughly debated and open proposal, and pass it in 2021. After all that has happened, the arguments will be compelling.
I agree that the right wing extremists appointed by Republicans are creating a crisis of legitimacy for the Supreme Court. Ed Meese, Attorney General in Reagan Administration, is the architect who laid the foundation of today’s extremist court. His primary objective was precisely to politicize the courts. To stuff them with young right wing extremists. His strategy's crowning achievement was the decision in Bush v Gore. In successive administrations Republicans have followed Meese’s blueprint. Small wonder Mitch McConnell was happy to deny Merrick Garland a hearing or that when it looked as if Hillary Clinton might win the presidency many Republican senators opined that they would not be obliged to consider any of her Supreme Court nominees. The right wing success in packing the Supreme Court over the past three decades may yet prove the court’s undoing. Two of the four sitting right wing justices (Thomas and Gorsuch) are politically compromised and already considered illegitimate by many Americans. The attempt to bully and bulldoze the Kavanaugh nomination through the Senate will, if successful, further diminish the court’s legitimacy. I suspect the court has only just begun to reap the whirlwind sown over decades by right wing zealots.
3
@AM
You don't recalld Franklin Roosevelt wanting to add big-government believers to the Supreme Court so that an 8-7 majority would rule in favor of things like the National Recovery Administration?
All of America sees all the Justices through political lenses, as requested by the Democrats.
Abortion and civil rights divides us and the Supreme Court. Before abortion became an issue, the role of unions and slavery divided the country and the Supreme Court. Racial justice has long been an issue. Will this country ever make real the ideas of Thomas Jefferson in the Declaration of Independnce or John Adams on slavery? They were writing on these issues more than 200 years ago. It’s time we put a stop to our racist ways.
1
The reason the Supreme Court has retained a perception of legitimacy has little to do with its trappings, or its being sequestered away from public view. The legitimacy of the Supreme Court comes from the knowledge of the justices who have preserved that legitimacy: history will judge their significance as public figures on how well they served the court - as opposed to how well they served the causes of their former political allies. That's why their appointments free them from any personal political accountability. Some don't get it. Some are too superficial to get it; others too venal [IMO, Rehnquist]; others put a judicial ideology in their way [IMO Frankfurter and Scalia]. Some of the former politicians do pretty well, e.g., Hugo Black and Earl Warren. The court's institutional authority is a product of the constitutional plausibility of its decisions, and its recognition of its duty to preserve individual liberties from the majoritarian mob. Those two things can't always been easily reconciled.
Dear Mr. Leonhardt,
The Supreme Court is doing great; we are falling apart!
For such a miniscule judicial body to saddle up the entire country and grab the enormous power into their elderly hands is an astonishing accomplishment.
To climb up so high to be in position to prescribe to more than 325 million people what we want or desire is an unbelievable feat.
We don’t need to limit the terms of Justices but their power!
2
Interesting article, but it is a faint hope, at best, and a somewhat pitiable one, that Roberts will move ever so slightly to the right. I think a deeper analysis may be warranted here. The majority that has been in place for decades, Kennedy included, has been extremely conservative. When one considers some of the courts's past major decisions-- allowing virtual unlimited campaign spending by corporate "persons," (Citizen's United, Buckley), further eroding the power of labor (Janus), permitting voter suppression laws, etc.--it is all too clear that an ultra conservative (aka radical") court benefits the interests of corporations and the top one percent. The Republican party has become no more than apparatchik for the powers to be--hence their zealous pursuit to install Kavanaugh at all costs, including the democratic and moral credibility of the court.
1
The fault lies in the Constitution, which empowers the president, a political entity, to nominate a person who is supposed to be apolitical. That is an impossibility. Nominations should be made by a bipartisan committee of SCOTUS justices. For example: Roberts/Gorsuch/Kagan/Ginsberg. They would be far more adept at selecting nominees than Donald Trump, who knows nothing about judicial talent and expertise.
1
While climate change and middle class living standards are clearly important issues, there is no fundamental right either for or against either in the Constitution. It sounds to me like the author's worry about government action being blocked is more likely frustration with Congress and perhaps how the current administration carries out existing law, not due to actions by the Supreme Court. While he laments about an activist court, what he seems to really want is more activism that suits him.
1
@Rick K.
Well, you certainly did miss the point of the column.
As far as the general public is concerned, the Supreme Court has long since lost credibility. For anyone paying attention, Bush v Gore was an ample demonstration of how the justices were little more than partisan politicians with robes on, and that was almost 20 years ago. I’m sure there are a few law professors out there who still hold some idealized notion of how the court stands above the partisan fray, but the rest of us have no such illusions, especially in the wake of the blatantly political process that installed Neil Gorsuch in place of Merrick Garland. In any case, the Republicans’ actions in that regard (refusing to consider any Obama nominee, vowing not to consider any Clinton nominee, changing the rules so that the Republican nominee could be confirmed without a single Democratic vote or threat of filibuster) guarantees a thoroughly politicized court going forward. From now on, we can take it for granted that no Republican majority in the Senate will ever confirm a justice nominated by a Democrat president, and that Democrats will return the favor by refusing to confirm Republican presidents’ nominees. Does Chief Justice Roberts care enough to try to rein in far right conservatives for the good of the country? That idea might sound viable in somebody's Constitutional Law class discussion somewhere, but it ain't going to happen in the real world.
1
If any justice should be impeached, it should be Clarence Thomas. If that can't be done, why do my foolish Democratic colleagues think they can impeach Kavanaugh. Never mind that he lies a lot.
The proven nature of those lies should be disqualifying without even bringing up women. He clearly lies for his party: that's why they want him. And he clearly will lie for Trump, that's why Trump prefers him.
It's a sewer.
4
There is nothing unimportant about the "crisis of the day", but all of the individual bits of turmoil since Donald J. Trump took his seat in the Oval Office continue to obscure the most fundamental issue: abuse of power. And there's no greater abuse of power that the abuse that follows $$$ in politics.
Two simple (to conceive, not to enact) changes could help disconnect governance in the White House and Congress from money: 1) prohibit all private contributions to federal election campaigns and fund them with public money; and 2) replace the federal income tax system with a simple, transparent federal flat tax on consumption -- a change that would eliminate the quid pro quo playground that exists between political parties, Congress, and the lobbies for individual and corporate wealth.
My faith in the Supreme Court was shaken when they declared Defense of Marriage Act to be constitutional thus inserting government into personal relationships. I lost all faith when the Court heard Gore vs Bush. The court had no precedence nor right to adjudicate this case. According to the US Constitution the Electoral College was supposed to have heard election related cases.
As it sits right now, the Supreme Court is nothing more than an unregulated and unelected branch of government. They let personal feelings rule instead of the US Constitution.
One place to start is to put 10 year limit on how long one can serve. There also needs to be a way for a national citizen's initiative to trigger a review process that could lead to the removal of justices that act improperly as in not recusing themselves from cases that have personal ties or for justices that are involved with lobbyists.
Another important step will be to place a 3 term (6 year total) limit on House Reps, and change the Senate to 3 year terms with a limit of 2 terms. Government does not work for We the People because too many in government are only working for themselves. Cutting off the gravy train will allow more people to participate, which is a great thing.
1
@skramsv Last I checked the Constitution, they are not supposed to be elected.
When "taking it all the way to the Supreme Court" is identical with "taking it down the street to the Prep School Clubhouse," there's another alternative: Adopt a new branch of government, called "local organized crime."
This new branch will offer instant justice to the highest--or, significantly, the FIRST bidder.
2
I stopped believing in checks and balances after Bush v. Gore. How can anything compare with a presidency stolen?
Even Sandra Day O'Connor said that was her biggest regret.
Parts of the Constitution need to be ripped up. We have had popular votes ignored, using outmoded voting methods such as the electoral college.
A state such as California with 40 million people has the same number of senators as Montana with 1 million?
So, in confirming a Supreme Court nominee, each state is equal?
Yes the House is based on population, but the senate has greater powers.
4
The spectacle of confirmations reveal just as much about power in the United States as the content discussed during them.
With the sound off, the image of Anita Hill and her family sitting opposite a panel of Senators was just as memorable as anything that is discussed. To this day, that indelible image looms over Clarence Thomas' judgements. Perhaps it explains his relative reticence as a jurist.
Senators must be aware that the image of the current confirmation process has power in itself. It is unlikely to flatter the process or the party in power.
Unless a big surprise looms on the horizon, the damage to the Republican will only magnify.
2
It is true that the Supreme Court nomination and the court itself has become polarized and politicized. However, this is nothing new, but rather a reflection of our current state of political affairs. During the Roosevelt administration, he was faced with a very conservative court that sent back many passed laws. Roosevelt's response was to pack the court. This was just as much a political lightening rod as what you see now - but Congress was not as divided. Did not the Supreme Court uphold the detention of ethnic Japanese even though they had no evidence of treasonous activities? This too was a reflection of the political climate. What is different is the circus atmosphere of the nomination process. The hearings should be prompt and limited in time. Given the nominee (for any office) is qualified, we need an up or down vote. The no action on the Obama nominee was unconstitutional. They as supposed to advise and consent, not stall and disconnect.
1
Isn't a lifetime Supreme Court appointment close to the monarchy our forefathers fought to overthrow? It's time to amend the Constitution and not only set term limits but set time limits on the confirmation process. We cannot have a repeat of the McConnell abuse of Merrick Garland and President Obama's power to nominate.
3
@abigail49 "We cannot have a repeat of the McConnell abuse of Merrick Garland and President Obama's power to nominate".
The Constitution's power are not limited to the political party making the appointment.
@abigail49
AGE limits will do. No term limits. No judges past 65 years of age.
Democrats will need to expand the Court. The other proposed solution, term limits, is nice but politically impossible. Thanks in part to the seat stolen from President Obama, the Court has been set on a path where it is almost completely out of step with the will of the people.
3
The simple solution is to expand the Court but for every particular case select a subset of justices by random drawing. This way there is a strong incentive for the Senate and the president to negotiate moderate justices. Having a 20% probability that the Supreme Court might support the nationalization of Citibank might be a strong incentive to compromise.
1
As a Data Scientist, I find your suggestion intriguing. Of course, if a particular random draw results in a heavily left or right subset, then the opposite party will be screaming, "The fix is in!" But I guess we are already there with the present Court...
I think we need more conservative judges who will interpret and adjudicate not act as a super legislature accountable to no one.
3
I don't know why Roberts gets so much credit for his so-called
support of Obmacare, when he allowed states to opt out of
medicaid expansion, thus severely weakening the legislation.
And now the trend is for Republican States to embrace medicaid
expansion.
2
I lost faith in the legitimacy of the Supreme Court in 2000 when they decided who would be president on a partisan basis which changed the direction of our country forever. The Court's degradation continued with Citizens United and the gutting of the Voting Rights Act. When, notice I don't say if, Kavanaugh takes his place on the Court the devolution from a legitimate legal body to a partisan machine will be complete. I hope every one of the Justices squirm as they have to work with Kavanaugh, wondering who paid off his debts, if he is addicted to alcohol and gambling, if he lied to not one but two Senate Judiciary Committees during his confirmation processes, and finally if he attempted sexual assault and abuse at several points in his life. But maybe they won't care, after all, they've been working with a credibly accused sexual harasser since 1992. Perhaps familiarity does not breed contempt.
7
"The Supreme Court Is Coming Apart"
No, I would say that "The Supreme Court Is Becoming A Party". A Republican's subsidiary.
6
Roberts declared discrimination over & "things have changed" when he gutted the Voting Rights Act of 1965 in his decision in Shelby, then the same racist districts subject to preclearance returned to excluding minority voters within 24 hours of that decision. His decision wasn't naive, rather it was sinister delivered with ill intent.
2
I can’t think of another country where the Supreme Court is so nakedly partisan or political. What are other nations doing right that the US isn’t? At what level do your judges get ensnared in politicking?
The SC - in fact most courts - needs to be moved outside the reach of a President and Congress. Both will look at a court appointment as a way to favour their agenda, simple as that. It needs a new system using a neutral, non-government, body of some sort.
Ironic how you topple a monarch out of a dislike of tyrants, then replace him with a President with a quasi-monarchal role. Using Presidential powers to pick a name that favours an agenda and sending it to a like-minded Congress is always going to be flawed.
2
After the Clarence Thomas decision, then the despicable refusal even to meet with Merritt Garland, then Gorsuch (or whatever in the world his name is) there is no reason to have any confidence whatsoever in the Supreme Court. We are living back in the days of Royalty when the King (and Queen) ruled with impunity. If either Gorsuch or Kavanaugh had any sense of ethics, fairness, and decency, they would have refused even to be considered under the circumstances under which they were named. That they agreed to be nominated, itself, completely disqualifies both.
4
@Donald E. Voth\
Hold on a second. The confidence should rest with the republican party. THEY are the ones responsible. Not the court itself.
2
@matty
No. The nominees can refuse!
Remember that Gorsuch is also a graduate of Georgetown Prep!
I wonder what skeletons there are in his closet, too!
Courtesy of Merriam-Webster:
Definition of kangaroo court
1
: a mock court in which the principles of law and justice are disregarded or perverted
2
: a court characterized by irresponsible, unauthorized, or irregular status or procedures
Maybe I should have said, "Courtesy of the GOP."
4
Everybody sees partisanship. That is a very crude use of the word which is informed by the writer’s own partisanship. What we are really seeing is a long-standing and bitter debate over how to interpret the constitution. If you want to start with near causes rather than distant ones, the bitterness began with the underpinnings of Roe v. Wade. No matter what you think of abortion, the Roe decision was a jurisprudential shock. And, as we can see every day, the system, not to mention the nation, is still in shock.
4
The die was cast when for decades, the resounding cry from the right was about "judicial activism" and "legislating from the bench". Sensing a political opportunity, the GOP made a deal with evangelicals who felt Americas moral character was being destroyed by "liberal judges." ultimately invoking God wrath. Since then each and every election is about the court/courts to curry favor with the religious base.
A court with Kavanaugh will roll back Roe v Wade, the remainder of the Voting Rights Act, uphold gerrymandering, finally kill net neutrality, roll back or curtail numerous worker protections and environmental regulations and drive a steak through the heart of civil rights for the LBGT community.
Presumably ,this will make God happy.
4
Reading articles like this pleases me. As a government Solicitor and then later a private federal appellate practitioner of government related issues, I long ago came to realize that my odds of victory depended not on the virtue of my cause or the strength of my advocacy, but primarily on the politics of the judges before whom I appeared. Politics corrupts; and when it involves the judiciary, it corrupts absolutely. Hopefully, the current Kavanaugh circus will bring this corruption to the forefront and augur for a new apolitical judicial selection scheme.
7
Isn't there a third option? If Brett Kavanaugh makes it onto the Supreme Court in this atmosphere with these allegations wouldn't it be possible, say after 2020, for both he and Justice Clarence Thomas to be re-investigated and impeached? I Sukari Hardnett, for example, was never allowed to testify during the Clarence Thomas hearings and there are others who also didn't get a chance to speak.
2
The crisis of legitimacy for the SCOTUS began in earnest with Bush v. Gore, but Nixon treated nominations with scorn. See Carswell.
"Finally, there is the possibility that Roberts comes to understand the peril to the court. He clearly cares about the court’s credibility..."
He cares about himself...
1
Risks? The court has been illegitimate since Bush v. Gore, when judges with personal stakes in the outcome did not recuse themselves. Illegitimate since it was obvious that Thomas perjured himself in his senate hearings, but no one bothered to impeach him for it. \Until Gorsuch is removed and replaced with Garland, or another appointee of Barack Obama's choice, it is unconstitutional in illegitimate. Finally, anyone that Trump appoints while under investigation? Forget about it. We are long, long past legitimacy. As far as I'm concerned, rulings of the current court are null and inapplicable. Justice and the law have little enough to do with each other as it is, but the "rule of law" itself has long been a joke in this country, where rich and poor have different rules, and where cops have no rules at all.
Thank you for providing me a platform to rant.
3
There are conservative arguments and progressive arguments. Then there are lies, distortions and outright corruption. CItizen's United was and is an attack on democracy, outside of any law or common sense, hiding illegitimate moneys to empower the GOP. SCOTUS proved with that decision that they are illegitimate.
1
@John
The dichotomy is conservative AND liberal, REGRESSIVE and PRO-gressive.
I'll give you an example. Working for PG&E (pacific gas and electric) at one morning meeting, we were told that with certain archival material we should be very "liberal" with the information contained therein. The man in charge did not understand or use that word / concept properly, but in his mind he probably did. He should have instructed us to be LENIENT with this specific information and not "liberal."
1
Reminds me of an articld on the New Yorker:
Judges, liberal or conservative, should not be wholly predictable; they should be open to complexity, to ambivalence, to frustrating supporters and withstanding criticism. You can’t be expected to vote as Kennedy did.
1
An inevitable consequence - now and always, here and everywhere - will be war. Iran?
The degradation of the Court is not a recent phenomenon.
Recall George H. W. Bush's 1991 claim that Clarence Thomas was the "best-qualified" person for the Court seems especially laughable, given his virtual silence during 27 years of Court deliberations and his automatic far-right votes on almost every issue. I wouldn't be surprised if he voted in favor of rehabilitating Plessey v. Ferguson.
3
Thank you David Leonhardt for an excellent overview of the fall of our last of pilar of democracy.
If Kavanaugh is confirmed we will have reached a low point in American political system:
1. An incompetent and corrupt executive branch
2. A completely dysfunctional congress
and now 3. A kangaroo court
Republicans love to reference the founding fathers. I'm sure the founding fathers would be horrified at the Republican party for
destroying all three branches of government they created.
5
@Paul Robillard
The "founding father's" should have realized the need for age limits on government representatives and judges. Obviously they weren't visionary enough to imagine ways in which this experiment could be corrupted.
1
We are facing having two illegitimate SCOTUS justices;
Gorsuch is obviously so. He has Garland's seat thanks to McConnell's malevolence. He should be removed.
Kavanaugh may be illegitimate due to the Trump campaign's involvement with and help from Russia and Putin. We'll see.
I agree with DL's assessment that Roberts may turn out to be the swing vote, at least in matters involving extremely fascist moves by Trump or the GOP.
1
There is an old saying that a rotten apple spoils the whole barrel. The relationship between Kavanaugh and Judge bears special scrutiny as Judge an omitted bad boy and Kavanaugh as a want to be, but seldom crossing the line. Why else would they hang out together? And yes I was a teenage boy in this type of relationship not in regards to women but the law.
Some civilizations base their judge selection on the wisdom of the judge not their party affiliations and they lasted much longer then Americas has yet.
MAYBE WE SHOULD TAKE A CLUE!
1
Republicans clearly don't care about the legitimacy of the Supreme Court, or of the entire Judicial Branch. Or worse, they have redefined "legitimacy" in purely partisan terms, and see partisan transformation of the judiciary not as a crisis but as a highly desirable outcome for themselves and their donors.
They don't seem to care about the legitimacy of the other branches either. The sole legislative achievement of the current Congress was borrowing $1.5 trillion for a tax cut benefiting corporations and wealthy donors. Like their failed attempt to destroy the ACA, Republicans evaded the normal legislative process to pass it. Reconciliation let them bypass the filibuster and exclude all Senate Democrats. They prepared the legislation behind locked doors without public hearings and debate. Once they had enough Republican votes, they unveiled it and rushed it to the floor for a party-line vote. They needed this ploy because the legislation was highly desired by donors, and fulfilled years of lying promises to their loyal "base." But it was deeply unpopular for everyone else.
And of course, we have a raving lunatic in the White House who lost the popular vote by a large margin, but claims a mandate to trash the Executive Branch.
The Greedy Oligarchs' Party are assiduously trashing the institutions of our democracy to serve themselves and their donors' dreams of transforming our country into a feudal plutocracy. That's the real crisis.
2
The accusations against Kavanaugh show a disturbing common factor that nobody has commented on yet. He’s as described as shy except when drunk, and then would allegedly commit these ugly acts against women *at the goading of other men*. Meaning, he would let himself be manipulated to be the instrument of abuse by the more powerful guys, who would keep their own hands clean. Hardly a reassuring portrait of a Supreme Court nominee.
2
@RSS: where do you get this from? gossip? innuendo? how SHY can a Federal Judge be? He seemed not shy at all so far in the hearings.
The left has abandoned all pretense of a fair hearing, wishing instead to rely on gossip, malicious stories, and fantasy.
Since most things are quickly degenerating, coming apart at the seams, why shouldn't this also happen to SCOTUS?
1
Aside from the most obvious, the delegitimization and politicization of the SCOTUS is a critical step in PUTIN's grand plan to destabilize the United States from within.
We have a feckless, criminally-divided Congress, and narcissistic sociopath who is in Putin's pocket in the White House and now, it would appear, a SCOTUS that is losing all semblance of credibility in the eyes of the populous.
Our national security (much to Trump's glee) is therefore being compromised with the ever-increasing degradation of the DOJ, virtually NOTHING is being done to thwart this upcoming Russian cyber-intervention into the mid-terms and the investigation into the heart of the 2016 intrusion looks as though it will be shut down by the very person it is investigating. THE RULE OF LAW IS FAILING and our government, such as it is, is becoming an autocracy in the hands of a sociopath.
Where to now? It is REALLY time to sweep this obscenity clean - get rid of Trump and the Republican Oligarchy and elect REAL people with a REAL agenda. VOTE!
2
SCOTUS is in trouble? Surprise, surprise!
The court's problem is that by degrees it is becoming less of a court and more of an unelected policy-making institution. And that idea, folks, has consequences. As Judge Alex Kozinski once put it, "When we act like politicians, will be treated like politicians."
Or, in another smart dude's words, "You can be a bagel or a donut, but if you try to be both, you're toast."
If you are interested in an astute (but highly readable)assessment of the problem, read Prof. Paul Bator's law review article written over a quarter-century ago, entitled "What Is Wrong with the Supreme Court?" 51 University of Pittsburgh Law Review 673 (1990).
Judicial appointments always involved a dollop of political patronage, but the serious problem started with FDR's avowedly political threat to pack the supreme court with justices openly chosen for their partisan support of New Deal legislation that at the time was not faring well in the Supreme Court. It was institutionalized when Teddy Kennedy's scurrilous attack on Judge Bork was embraced by his party as a legitimate factor in making judicial appointments.
So be careful what you wish for because you may get it.
The Supreme Court is experiencing a "crisis of legitimacy"? Here is what the author really means; It's because Democrats don't always get to pack it with left leaning judges who want to make law instead of interpreting it. Henceforth, it must be illegitimate when judges who adhere to the Constitution when hearing cases before the Court do not rule as Democrats, liberals and progressives demand. It's that simple for the left. Their way, or the highway.
1
@paul: had Obama gotten Garland confirmed...he would have nominated THREE of nine Justices, or fully 1/3rd of the entire Court with hard-left liberals....replacing Scalia with a hard left liberal.
Of course the left is disappointed, because they did not get their way!
Most cases get to the Supreme Court by petition for writ of certiorari; at present, four of the nine Justices must vote to accept the petition. If six or seven of nine justices were required instead, a partisan-majority of justices would be less likely to pick the cases "of interest" to them.
This would go a long way to re-legitimizing the Court.
Maurice F. Baggiano, Member of the Bar of the U.S. Supreme Court
Jonathan Turley has a 13-year-old proposal to expand the Supreme Court that makes sense. Far from causing a tit-for-tat partisan exchange between the Dems and GOP, his plan would reduce the importance of a single appointment and encourage educational, geographic, and ideological diversity on the Court. It has several other benefits as well.https://jonathanturley.org/2007/08/18/expanding-the-supreme-court/
I can’t figure out why, but David conspicuously ignores the fact that three recently-retired, Republican-appointed justices—Sandra Day O’Connor, David Souter, and, to an extent, Anthony Kennedy—defied conservatives’ expectations by drifting to the left. Alito, Roberts, Gorsuch, Kavanaugh: they’re products of a radical rightwing vetting process conducted by The Federalist Society to weed out potential independent-minded justices. Sotomayor and Kagan were nominated as counterweights to Alito and Roberts, and Obama nominated Garland—a moderate compared to the liberal and conservative justices—in attempt to get SCOTUS back on track. It was a fundamentally (i.e., small-c) conservative strategy.
So when David writes:
>>But this is laughable. In almost every major decision last term — and many others over the past decade — the justices divided neatly along partisan lines. The five justices chosen by a Republican president voted one way, and the four chosen by a Democrat voted the other.
He, in the grand tradition of The New York Times, draws a false equivalence between Democrats and Republicans. The current state of the Supreme Court is 100% due to decades-long far-right machinations. Period.
1
The author says, essentially, that current Democratic-party appointed judges range from moderate to liberal, while the Republicans are all hard-core right wingers. When was the last time a Democrat justice voted to uphold even minor abortion restrictions, or support any gun rights? If you think those are extreme, far-right positions which no justice should support, you are measuring “moderation” from a biased liberal perspective that is out of touch with the average American. Truly “moderate” progressive justices would occasionally vote right of center on those issues. That does not happen because justices appointed by Democrat presidents are big left-wing liberals. Not being as far left as Ginsberg does not a moderate make! It just means you are slightly less liberal than the most extremely left-leaning Justice.
Excellent opinion piece! Precisely to the point of the conceit of an impartial, nonpartisan Supreme Court that is abundantly apparent to any child studying the SCOTUS in their civics classes.
Get the money out of politics. If the presidency cannot be bought or stolen ....[direct popular vote] that kind of power could possibly alter many problems that exist today. Time limits on campaigns and court appointments make sense. Life expectancy today is double that of when the constitution was written. A position for life is absurd . Like it or not, both Hillary and Gore were chosen by the people, and so many Americans do feel their vote does not count.. I see the continuing increased power of POTUS as some, not just the court, reasons for the fracturing of the country.
Terrifyingly sad as it is to contemplate, RBG might have to recuse herself in the event of any matters involving the so-called president...she's already on record as not his fan.
Thomas Jefferson, with all his faults, still had a clear-eyed view of the problems with the power of the Supreme Court:
In a letter to Judge Spencer Roane, Sept. 6, 1819, he said:
“Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” , and this in a letter to William Jarvis, Sept. 28, 1820:
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”
What Jefferson saw in the early 1800s is as prevalent today, if not more so.
I am not sure that any historian would consider John Marshall or Joseph Story without biases and, so, impartial.
John Jay, the first Chief Justice, thought that the people who owned the country should run it and the rest of us should tug our forelock.
You'd have to look hard in recent times to find decisions worse than Dred Scott v. Sanford or Plessy v. Ferguson.
However, with Bush v. Gore the SCOTUS hit a new low.
the court lost its legitimacy with bush v gore
1
The court lost its legitimacy under Obama.
1
Let's clean house...it is about time we looked at the Supreme Court and who we have put in there. After all, Clarence Thomas is there and he is not saint!
The Supreme Court ceased to be an independent branch of government when they erroneously made George W. Bush POTUS. Since that time, very little has come out of the court in favor of regular, working Americans. It might as well be part of the Chamber of Commerce for all the good it does us. Most rulings today from the court are in favor of the wealthy, businesses and corporations. Pity the fool who believes he/she will ever receive "justice" from the court.
Now we witness Kavanaugh being coached in the White House for his hearings? Something is definitely wrong with the U.S. government.
1
It all goes back to Citizens United, the stain. Hopefully, Roberts has enough sense of history to know that unless he tacks towards center and left his court will be what Winthrop called a "byword and a story," a synonym for corruption & folly for future generations.
Republicans. save the Supreme Court, not Kavanaugh.
"We should let the American people decide the direction of the court."
With these words Mitch McConnell let Pandora out of the box.
The first step in getting it back in the box is to utterly destroy the GOP in the voting booth.
Unfortunately, almost half of the voters in this country have bought into the idea that irrational hatred, immeasurable stupidity, and willful ignorance are virtues. The hallmarks of every, so called, "Superior Race" of the past.
This country has two options, and only two: Defeat the GOP, or learn the German language equivalent of "deja vu".
In the words of Mr. Carpenter from The Day the Earth Stood Still, "The decision rests with you."
They need to take down that statue of "Justice" in front of the court, because she has gotten her sight back, at least in her right eye.
Money is speech.
Corporations are people.
This is the 'reality' imposed on us by the right-wing judges of SCOTUS. It remains to be seen whether the country can survive these Orwellian, cancerous pretensions.
3
Ask the Voting Rights Act how much we can turn to sweet-smilin' Justice Roberts to save our country.
Supreme Court nominations are filled with fear and loathing because of “penumbras.” The term originally was an astronomical term that meant the space of partial of partial illumination between shadow and full light that occurs during a solar eclipse, but in legal terms it has become a metaphor for “implied” constitutional rights. The most famous example is the majority opinion in Griswold v. Connecticut (1965) in which Justice William O. Douglas wrote,” the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (I am not making this up.) This mystic ability to perceive penumbras emanating from the parchment of the Constitution is what gives Supreme Court justices the power to revise the Constitution without resorting to the amendment process. The founders would be horrified to know that America now permits nine black-robed partisans to rewrite the Bill of Rights.
Funny that Mr. Leonhardt ignores the NYTimes research on the voting history of Justices. It is the Democrat appointed Justices that ALWAYS vote in lockstep with that parties position! Only Justices appointed by Repubs (Roberts. Souter, Kennedy, O'Conner, etc) show a record of independent thinking and voting. Perhaps it is because Democrat appointed Justices never, ever stray that recent Repub appointments have become more ideological.
Indeed, the partisan nature of the Court and the life or death impact its decisions will have on women, people of color, and many others, make it imperative for the country to wait until after the midterm elections before confirming a nominee. The Republicans refused President Obama's nomination while he was in office on the grounds that no decisions could be made until after the next election so that the "people" could decide. Therefore why should anything be different less than 2 years later?
2
John Roberts personally engineered the Citizens United ruling, plain and simple. There has never been a more prominent and damaging case of judicial activism.
Justice Stevens said this: He argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He added: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."
Roberts is a very intelligent person, and there is absolutely no doubt that he knew what the impact of the ruling would be. So the huge influx of dark money into our political system since Citizens United was not a side effect, it was his intention. Roberts is a conservative. Just a coincidence that two extremely wealthy brothers spent nearly a billion dollars during the most recent election cycle funding hard-right politicians? Nope. Just a coincidence that conservatives now control Congress and the White House? Nope.
Power corrupts, and absolute power absolutely corrupts. History will not be kind to Roberts, and hopefully he'll be removed before he can further destroy our democracy. He won't go without a fight, that much I can guarantee. Just a coincidence that the Roberts court decided to let GOP gerrymandering stand, and in doing so helped keep conservatives in control? Nope.
Our democracy is being trashed by the people empowered to protect it.
4
The Supreme Court has been the mess for many decades.
No court has the power to supersede the US Congress and lawfully enacted federal laws.
No single individual or a few of them have the power to overrule the will of the voters and their elected representatives.
The laws must me easily understood by the overwhelming majority of the people because the laws are for the citizens. It means the citizens enact those laws. If the laws cannot be understood by the people but just by the “experts”, it means the laws are not created by the people but by the corporations.
If the federal laws protect the corporate interests, then the businesses and the capital are at the center of our legal system, meaning we don’t live in democracy but the corporatocracy.
If the interpretation of the law depends or a single-justice Court majority, then our freedom and the rights depend on a good will of a single person…
The problem is completely unrelated to Donald J. Trump because it preceded him meaning we should be thankful to the incumbent for exposing the latent structural deficiency of our democracy.
At risk? Its legitimacy is already very badly damaged.
4
While I agree that a term limit for the Justices is a good idea, the Republicans are never going to agree to such a constitutional amendment when they are on the verge of consolidating their power on the court for generations. It is ironic that precisely because term limits is needed in this hyper partisan era it is less likely to happen. As for expanding the court, "been there, done that" FDR.
If your highest court is not impartial, who do you turn to?
I haven't trusted the SCOTUS since Clarence Thomas was appointed.
7
The extreme right wing appointees of the court are corporatists more than conservative. All of their major decisions give corporations more power over people. And nothing in the government can reign in the multinational. We should consider the 28th amendment to restrict corporate power, something supported by many conservatives. Corporations are not people.
Another remedy that Democrats have is to impeach justices. If there is consensus, Supreme Court justices can be impeached. Clarence Thomas should not be sitting in the court. Kavanaugh could also be impeached, if he gets to the court as expected. Both of those justices lied to Congress. They also put politics over the law, which was a basis for considering another impeachment.
3
It was not that long ago when smoking marijuana or failing to pay your nanny’s payroll taxes would disqualify you a lifetime appointment on the highest court of my country.
6
@MB
So true. A friend of mine was turned down by the Coast Guard because he admitted to trying pot during his teens. As he said, "What was I supposed to do? Lie to them?"
Honesty is no longer a virtue.
1
Mr. Leonhardt, allow me to disagree. Conservative jurists really do believe they call balls and strikes. It is liberal jurists really do believe it is their duty to reinterpret the Constitution for changing times.
Conservative jurists really do respect precedent, except when the precedent in question was a radical reinterpretation of the Constitution. Conservative jurists and liberal jurists, do “follow the election returns,” but that just means they try take many things into account.
You are upset that the Court is becoming more conservative. A more conservative Court is a more predictable court, and a more conservative court means that new law is far more likely to be made in legislatures, than from the bench. This is as it should be.
1
@Larry.
Conservative justices, and I’m using the word “conservative” generally to mean narrowminded and intolerant of change, base their decisions on something called “originalism.“ (Those generalizations about conservatives have been confirmed repeatedly in sociological and neurological research.) If we are supposed to believe originalism is the proper doctrine, does that mean that a black man’s vote is only worth 2/3 of a white man’s vote? That’s what the Constitution says. If we are supposed to believe in “originalism,“ then women shouldn’t be voting because the Constitution did not grant them the franchise. Now if you like an interpretation based on “the original” document, that’s what you get. But you don’t really want that. You just want decisions that stomp on women’s rights, gay rights, individual rights, consumer rights, worker rights, and any rights that the oligarchy doesn’t like. I don’t know why you folks just don’t admit what you’re talking about. The originalism stuff is such obvious baloney. Unless, that is, you still think women shouldn’t vote.
David Leonhardt..."Over the long term, the court risks a crisis of legitimacy."
--->
The SCOTUS is already illegitimate with Thomas and Gorsuch.
7
Hear, hear!
2
“Roberts is never going to turn into a liberal. But it is reasonable to hope that he will show more of the small-c conservatism that the Supreme Court needs.”
Reasonable? No, a fairytale. Roberts is the most ideologically driven Chief Justice in the past century. He lied in his confirmation hearings on the most crucial issue: stare decisis. His decisions on women’s rights, gay rights, and labor relations bespeak a crude sledgehammer approach to the law. It would be comforting to think otherwise. It would be more realistic to accept the triumph of radical (indeed totalitarian) Republicans in making the court an instrument of their will. We are all done for.
3
In a perfect world, in 2020 Democrats secure the White House and a super-majority in the Senate, then impeach and remove Gorsuch as an illegitimate appointee to the stolen seat.
1
Sick and tired of BOTH parties tearing our country apart, endlessly vying for supremacy.
The winners? Millionaires, big corporations, and illegal immigrants gaming our system. The losers: Middle and working class Americans.
6
My pulitzer for commentary goes to David Leonhardt, he's schooled in the institutions, humble in his approach and gives his readers a better understanding of what's going on in Washington.
2
In prior posts I’ve advocated the defunding of TWO SCOTUS seats should the Dems take power. Last hired, first fired.
I also believe that after ten days of judiciary committee inaction, owing its refusal to begin its mandated duty, that President Obama was duty bound to commission Judge Garland himself and send him straight to work. The president swears to "preserve, protect and defend" the Constitution, that means to ensure its actions even if another branch does not. The Senate was required to act and it abdicated that duty. The continuity of government is more important than any political squabble. I’d advocate this act regardless of the parties in power.
On 17 Sep this newspaper reported that "Judge Kavanaugh spent the day at the White House, huddling and strategizing with aides in a war room across from the West Wing ..." (see "Hearing Set for Monday to Hear Kavanaugh and Accuser"). This sums up the problem of partisanship Mr. Leonhardt identifies: a man holding high judicial office, vying for the highest court, sequesters himself at the seat of Executive power, plotting a response to questions posed by members of the Legislative branch. The close connection between the Executive (abetted by friendly members of the Legislative Branch) and the Judiciary is the root problem. Term limits will not solve it. Other developed democracies do not have this problem because the judges themselves assert their independence and push back against Executive interference. But Kavanaugh and other nominees pander to the Executive, shockingly surrendering their independence for what they must see as the allure of a seat on the highest court. The Supreme Court is much the weaker for it. The judges need to think of the institution and get some backbone.
5
The Republicans win elections by trickery, deception and massive amounts of dark corporate money thanks to Chief Justice John Roberts. John Roberts will go down in history as the Chief Justice that handed down the decision in favor of Karl Rove's Citizen's United suit. That is the decision that more than any in modern history has altered the political landscape by permitting dark corporate money to flow into politics at every level without control. Roberts paved the way for massive computerized gerrymandering via statehouses that were bought and paid for in local elections by Koch brother clan funding. This plan has been highly successful. Mr. Roberts has done more to destroy democracy than any one could have ever imagined.
Voter suppression financed by the Robert's majority Citizens United money allowed the 2016 election to become a political and environmental disaster for the entire planet. The Republicans are trying to rush Kavanaugh on to the Supreme Court before angry voters actually show up at the polls and overturn the one-party grip the GOP has on our government.
9
The legitimation problem cannot simply be laid at the door of the Supreme Court. What Mr. Leonhardt writes is quite true, but would be much less worrisome if Congress had not become entirely captured oligarchical interests, and were able to perform the role for which it was originally designed of representing the ordinary citizens of the country. Since important social developments cannot be moved through the legislature effectively, the court becomes the arbiter, and is invariably politicized as a result. No bureaucratic solution will remedy that problem.
It turns out that the fall of the Soviet Union was just the prelude to the fall of the United States. Oh, the irony!
3
Rich men are buying the Supreme Court the same way they have bought the rest of the government. Credibility is not needed or desired - haven't we been watching it all along? Only power matters, because it's supreme. https://www.mcclatchydc.com/news/crime/article185832013.html
6
The court ceased to be legitimate when it inserted itself into politics, installed George W. Bush as an unelected President then realized its opinion was so flawed and irrational that it could not be cited as precedent. Once it made deciding who would be president its business, it abandoned any pretense of being a constitutional branch of government. Only myopia, denial, and the desire to not make trouble have kept legal scholars and the public from acknowledging this. Fundamental changes need to be made, including the abolishment of life-tenure (this is, supposedly, a democracy.)
10
Mr Leonhardt goes into much detail on the obvious but still misses the point. The degradation of our founding system of checks and balances is happening in the chambers next door. The abdication of responsibility by the legislative branch has forced the judicial to fill the void to update legislation written many decades ago - before civil rights, global warming, and retiring boomers. Until the voters hold Congress accountable or other means are enacted for same, faith in the system will continue to erode. In short - you see the symptoms, but fail to identify the cause.
4
The author is uninformed. The most common Supreme Court lineup is 9-0. 5-4 decisions represent about one fifth of the court's decisions. They get all the attention precisely because they are difficult decisions on which the two leading judicial philosophies are divided. But they are rare. If we include all the cases that request cert, fewer than 0.4% result in a 5-4 decision.
3
I’d advocate a constitutional convention to reorganize the court to eliminate its partisan nature if I didn’t think the Koch Bros wouldn’t be all over it for their own interests.
The next time a SCOTUS judge has a Q&A someone please ask them how a citizen can expect a fair hearing from members with distinct liberal and conservative philosophies and political affiliations (the nominating president) and post the answer. It could be precedent setting.
The "balls and strikes" analogy is apt. The common mantra about sports officiating is that honest refs have biases in the way they call a game, but calls either way eventually balance out.
This has actually been true with the Supreme Court,. It has been seldom that either party has been able to monopolize a significant majority of ideology: the Court has been amazingly balanced usually, with a swing vote down the middle.
The GOP is trying to change that balance, dishonestly (not only with the Supreme Court, by the way). It plays dirty pool (I use the reference cuttingly, since pool is usually played self-refereed) with actions like the shameless denial of Merrick Garland, and now the blatant rush job for a seriously flawed Kavanaugh. They are trying to set up the USA so that Republican views (which, evidently, no longer mostly align with conservative or Christian values) can reign supreme in all branches of government, especially in the one that can remain skewed for generations despite the shifts of power in the others.
The Founders attempted to create a democracy that would avoid the "tyranny of the majority". They didn't anticipate that the unscrupulous could turn it into a tyranny of the minority, because every poll, and recently the Presidential popular vote (regardless of the Electoral College), tells us that most Americans do not agree with the GOP's stance on things, and definitely not Trump's.
This is a dangerous direction. Let's at least stop the dirty pool.
7
What about a constitution amendment to make the entire federal judiciary, including the Supreme Court, a civil service institution? This would be in line with what other countries have. I can't believe that one would get judges of lesser quality than what we have now.
1
I have played the devil's advocate in this Brett Kavanaugh mess and I still believe that the Republicans--who ran away from modesty and conservatism (with a small 'c' long ago) will force the beleaguered judge onto the Court. It's all about ideology, not politics. Then, of course, the new appointee will reliably vote for any issue before the Court that favors the hard-right.
Here we have Chief John Roberts, a man who was never about "balls and strikes." What he has come to preside over now is a Court with public confidence in the institution all but eroded. This cannot bode well for the laws of country--those on the books but those in the future that no one can foresee.
Roger Taney forever cemented the reputation of his Court with his decision in 1857. He will always be known as a man who ruled in favor of white supremacy as the nation inched toward the Rubicon--and then crossed it.
Chief Justice Roberts has no control over another Justice's decision. But he seemingly has no moral authority and came off as almost childishly naïve when he declared that "blatantly discriminatory evasions of federal decrees are rare," when he and his right-colleagues struck down provisions of the Voting Rights Act of 1965 (Shelby vs. Holder).
His rulings based on the moment; he seemingly has no feel for the reverberations of his Court's decisions. Senate Republicans are to blame for this mutilation too (Mitch McConnell vs. Barack Obama, 2016).
Chief Justice Roberts has much to answer for.
4
it could be relatively easy to fix the Supreme Court nomination process: return to a 60 vote senate approval policy and the two political parties and the president agree that no nominee will be put forth formally, if an *informal* poll suggests that 40 senators object. that would force serious consultation between the parties and the president with the senate and likely result in a more moderate and respected court.
And, if it is abused, could easily be amended.
4
A good first step would be to return to the requirement that all judges be confirmed by a 2/3 majority in the Senate. That alone would require more moderate candidates than we have seen in recent years.
5
I found a truth about judicial "umpires," "Originalists" and "textualists" in the following discussion about calling balls and strikes among three baseball umpires:
The first one says, "I calls 'em as I SEE 'em."
The second one retorts, "Well, I calls 'em as they ARE!"
The third: "They ain't nothin' 'til I calls 'em."
4
The Chief Justice missed his last great chance for independence when he failed to object to the stonewalling of Merrick Garland.
This co-equal third branch remained asleep at the switch when it could have asserted constitutional authority.
John Roberts is no John Marshall.
8
@Occupy Government.... Object, how? What "switch" did Roberts control to affect the Garland nomination? Answer... NONE! Keep in mind the court does not have the ability to override the president or Congress on their choice of a supreme court nominee or process in confirming the same.
Had Roberts objected to how the Senate handled the Garland nomination, he would have correctly been told to "sit down and shut up."
Even John Marshall knew the limits of the Supreme Court provided to it by the Constitution. He understood that the Court was truly not created equal with the other branches of government, as he had to assert the power of "judicial review" that was not afforded to the Court in the Constitution.
1
How about the forum of public opinion. You're telling me that he couldn't have attended forums discussing his concerns much less have his people doing the same thing. The fact is, he did NOTHING.
1
@David Salazar, you're missing the point. "Occupy Government" said that Roberts was "asleep at the constitutional switch." The court, nor Roberts, has no switch to throw to avert the mistakes made by the president or Congress in selecting a new justice.
What's interesting is that you are asking Roberts to be political, but yet don't want the Supreme / Roberts Court to be political. Pick one, but you cannot have both.
The SCOTUS has been for some time just another political body and till his resignation, made Anthony Kennedy the most powerful person in the country as we were really ruled by one unelected official based on his views of the Constitution. Roberts may fill that role moving forward but it is still no way to run a democracy! If we don't get rid of the SC all together, there should be new rules implemented: 1. All rulings must pass 7-2 on a 9 person court or 6-1 if there is a vacancy, to set president. How hard is it to look at the Constitution and decide what it has to say (if anything) on a legal issue? If it is that hard to figure out, as opposed to just promoting their personal politics, make sure it is agreed to by a large majority of the court. 2. Apart from the Chief Justice, have judges randomly selected from the appeals courts to hear cases but don't allow the Chief Justice a vote - (s)he would have a purely administrative role. This way the political bias is at least a little more random.
2
If the SUC blocks in the future blocks every legislation involving climate change and universal health care plus vacating Roe vs Wade while voters send Democratic majorities to Congress together with a Democratic President the only remedy will be to increase the number of justices to bring balance to the court. That is more feasible than trying to pass a constitutional amendment. It will break precedent but not the constitution as it does not specify the number of SUC judges. Precedents have been broken shamelessly by Republicans playing extreme hardball politics; thus any objections on their side should be ignored until they agree to restore neutrality to the court.
3
Some suggest that it’s only fair that the”elected” party choose the Supreme Court judges open during their reign of power.
That idea reflects confusion about elections. The notion that voters “choose” their President. Actually, in the last election the candidates for the GOP were all atrocious. And the Dem candidate was chosen in a high-handed manner.
Voters had Hobson’s choice. And McConnell and Trump are not doing the peoples’ will, but obeying instructions from a handful of extreme right billionaires.
5
Just like our politics the Supreme Court is now a victim of excess and undisclosed money in our democratic system. For a President to abdicate his role of choosing a Supreme Court pick to an outside political organization that helped put him in office is the saddest thing to happen to our country. I no longer believe that the court will follow precedent or be considerate of the hard fought principles for equality that so many of us worked for.
2
It's pretty simple really. As a result of the internet, gerrymandering, and massive PAC spending, we live in hyper-partisan times. That hyper-partisanship has inevitably extended to the Supreme Court justice selection process. The Court had norms that tended to moderate or mask the political nature of many of its decisions, but those have fallen away. The Court has always been a political body, but its decisions that corporations are people, and that unlimited dark money should be allowed into politics (through PACs, etc.), dramatically increased partisanship. With those decisions the Court planted the seeds of its own destruction as a quasi-judicial body. It is now just politics by another name.
5
If Kennedy, who leaned left on so many issues, is considered a Republican moderate, are there any Democrat moderates or are they all left to far left? Kennedy was the swing vote in many cases whereas the Democrats generally vote in lockstep. Masterpiece was one of the rare exceptions, however the extreme narrowness of that ruling - the focus on the Colorado Civil Rights Commission's hostility to religion, means it is unlikely to be precedent setting. In what other cases did the Democrats break ranks? Kennedy aside the Republicans seem far more inclined to disagree with one another.
2
@Andrew Mason, What state supreme court are you talking about? Surely you're not referring to the SCOTUS!
If the Democrats take control they should impeach Kavanaugh, impeach Trump, and demand that Pence nominate Merrick Garland.
In the long term they should add two seats to the Supreme Court, enact legislation that reverses the last 10 years of activist decisions, move to prevent gerrymandering, and enact the Wyoming rule so that house representation will more closely match demographics.
We must return to the spirit of Democracy. That would give legitimacy to our elections and our Supreme Court.
The Republicans will go the way of the Whigs.
3
With Kavanaugh's assured confirmation we will have two Supreme Court appointees made by a corrupt, incompetent, illegitimate president Trump. We have a corrupt congress representing oligarchs instead of the majority of Americans. We have no political solution in sight. We need a military coup by some of the true American patriots in our Armed Services who can oust the Trump administration and call for new elections. We need to reverse the stain of the Trump rigged election of 2016.
2
The assertion of radicalness of Republican-appointed justices would be more convincing if the referenced links backed backed it up.
Both the Chicago Unbound link and the Martin-Quinn link are unreadable.
The politicization of the Supreme Court became evident when Sandra Day O'Connor essentially appointed George W. Bush as president. IMO the disastrous Bush/Cheney presidency was a huge contributor to today's despicable GOP.
6
The Supreme Court's legitimacy has suffered since Bush v. Gore when Justice O'Connor ruled as a partisan rather than a justice and handed the presidency to another Republican wrecking ball. Since then, however, Chief Justice Roberts has presided over way too many 5-4 decisions during his tenure. And, of course, there's the matter of why he recalled the Citizens United case after it was already settled. I have never seen a reasonable explanation for that activist decision he made to rehear a case on issues that weren't part of the original case. His action resulted in the floodgates of dark money in our politics and has escalated partisanship exponentially. This should be investigated and, perhaps, Roberts should be impeached.
9
The proper fix for the Supreme Court is laid out in the book "True Freedom - The Road to the First Real Democracy". The sole purpose of the Supreme Court should be to assess each different situation to see if there currently exists a federal law related to the applicable issue. If there is not a related law, a law created by 75% of congressional votes and not a simple 51% majority rationalization, it would then be up to Congress to create a new law and with a 75% requirement the American people would finally have a greater share in the decision making of Congress. The time has come to listen to that which Thomas Jefferson recommended and that was the rethink the entire constitution on a regular basis as things will always change whether you like it or not.
2
A lot of SCOTUS decisions that delighted liberals were 5-4. It doesn't matter whether the majority was all-Democratic nominees or whether some were Republican nominees who disappointed their party (Brennan, Blackmun, Souter, O'Connor, Kennedy).
This might also explain why recent Republican nominees are more reliably conservative -- to avoid nominees who might drift to the left over time.
The reason we don't choose presidents based on single states or counties is because the pool of constituients would be too small.
We need the people administering the laws to be able to choose who should oversee each facet in the DOJ.
For instance: Judges should be chosen from their peers and not random people voting for political allegiances. The Bar Association would have a better grasp on qualified attorneys than our government.
This is a true place where the GOP has it right and identifying where the government is too big. Solidifying party strength be forming factions isn't something Lady Justice had in mind!
1
Maybe we should take away the power of the senate to confirm. Instead the president should make a nomination and the people are allowed to vote for confirmation. Further, let this be a popular vote from the nationwide voting base.
2
Exacerbating the partisanship at the Court, is the failure of Congress to do its job. The hyper partisanship in Congress means Congress, time and time again, is only able to pass legislation that is ludicrously vague, inconsistent or even contractory because that is the only way it can obtain the political will to pass anything. That leaves huge gaps and errors for regulators, and lower courts, to fill. The end result is the Supreme Court has to weigh in on major policy issues, and is then immediately excoriated for "legislating from the bench".
4
Correct! Agree! Change comes from the ballot box. The court should interpret confusion regarding what congress intended.
What if court decisions required a supermajority and not a majority. This would force clearly written legislation.
2
"The second major threat to the court comes from the radicalness of Republican-appointed justices."
This is surely the key point. The Republican appointed justices are manifestly further to the right, extreme right even, than the more liberal justices appointed by Democratic presidents are to the left. Indeed, there is an entire conservative legal infrastructure in place to ensure this very result when Republicans hold power. This fact, together with the concomitant politicizing of the entire process, more than any other has served to undermine the legitimacy of the US Supreme Court.
6
The crisis is already here, now. The GOP has been laser focused on grooming their candidates for judgeships at all levels for over 20 years now. The Trump Presidency has offered them their long awaited opportunity.
The Democrats did not identify this GOP campaign and work hard enough to thwart it. It's sad they would have to do this in the first place.
Warfare has been declared and is raging in the full view of the American people right now. And yes, other than the Democrats appointing more judges when they regain Congress what decency and options exist for a cease fire?
Where are the leaders from either party calling for respect of the institution of the Supreme Court as Should Be? I see no one.
Absolutely no one which would argue for new people in both parties to come forward to run for office ready to lead.
4
I lost trust in the Supreme Court with the Bush v. Gore decision. They had no constitutional right to make the decision and it should have gone to Congress.
7
The problem is the Supreme Court was never intended to do for EITHER party what could not be accomplished at the ballot box. Hence the fact that it became partisan and a means to a political end. The solution is for the court to follow and reinforce the constitution and the laws that have resulted. Perhaps this slows needed changes, but at least it will force us to face ourselves as we vote, and to not look elsewhere for solutions to what the democratic process won’t deliver.
Thoughts?
3
"It’s why Republican senators took the extreme step of denying Barack Obama the ability to fill a seat. "
Actually, the Democrats, with Joe Biden taking the lead, did the same thing to the Bush's nomination, when he was a lame duck prior to Clinton taking office. But facts matter so little these days....
Anyway, this is an hysterical article. The Court has always been ideologically split from the founding of the nation.
And the author floats the possibility of the Dems "expanding" the courts should they win congressional control. Of course, the foregoing was famously tried by Franklin Roosevelt, and most Americans, and historians, were grateful that this attempt at "court-packing" failed.
But the "resistance" will try anything so deep is their contempt for America. If Trumpistas yearn for an America which once was, new Dem socialists yearn for an America which exists today only by mixing together Sweden, Venezuela and France. Good luck with that.
The Supreme Court is doing just fine. The Court survived really bad times like the Civil War, and even worse decisions like the Dred Scott holding and the Korematsu decision, authorizing internment camps as established by Franklin Roosevelt.
And if anyone's bothered by the health of RBG, then it is because she could have stepped down during Obama's reign, giving him the chance to replace her. It was RBG's own selfishness in this regard which Dems really lament, having nothing to do with a "crisis of legitimacy."
Chill.
3
Sure, the Biden rule, made up by Republicans
1
@Jubilee133
"Actually, the Democrats, with Joe Biden taking the lead, did the same thing to the Bush's nomination, when he was a lame duck prior to Clinton taking office."
No they didn't. There was no nominee to consider because there was no vacancy. Biden gave a floor speech in which he was speaking hypothetically, and that's what Mitch used to justify obstructing Garland's appointment. If it had actually happened, you would be able to name the nominee. You can't because there wasn't one.
It seems ironic that a president who promised to drain the national swamp of capital cronyism, to rescue government from the corrupting deep-state alliances of K Street and Congress, has chosen a consummate Washington insider to fill what could be a tie-breaker role on the U.S. Supreme Court. The nominee is a child of the Beltway, a product of its privileged schools, a contemporary of connected kids, a Yale law alum, clerk for prior and sitting judges, rising on D.C. legal rungs to work with the Whitewater team and in the GW Bush White House, before ascending to the federal bench. It's almost a model resume for Washington success. Apart from the accusatory news of the day, isn't our larger problem as a nation that despite our efforts to diversify government leadership, we still operate with a too-clubby Supreme Court? Isn't there something wrong with nearly everyone attending the same pair of law schools, a majority coming from eastern states, some overlapping clerkships and other symptoms of institutional inbreeding? Trump's two nominees are continuing the chummy local bar association atmosphere of a body that could use some fresh geographical energy to open up its "Skull and Bones" restrictions to graduates of other law schools. That at least would be a start to fairer judicial representation. ##
2
For me the legitimacy of the Court was completely extinguished with the appointment of Gorsuch. This trashing of the Constitution by MConnell is unforgivable. I will never vote for another Republican, no matter what. While the Court has always been political, it is becoming more and more polarized. Republicans correctly see that the nation is changing, and not in their favor. The only way to maintain power over the long term is to pack the Court with extreme conservatives willing to strike down any progressive actions taken by Congress. Not only are they doing this on the Supreme Court, the are also furiously trying to pack Federal District and Appeals Courts with their acolytes. In this way, Republicans seek to impose their mindset on the population even if the majority of the citizens disagree with them. This is the real danger of the McConnell scheme. I am personally in favor of term limits. While they are at it, the Senate Justice committee should also be mandated to consider a nominee within a certain time frame or the nomination is scheduled for a vote in the full Senate. This would at least assure that nominees get some consideration-unlike what happened to Judge Garland.
3
a partisan account on non partisanship
2
Who's kidding whom? The Supreme Court is already rigged. I'm a lifelong liberal and I wanted Barack to appoint Merrick Garland and Hillary to appoint young, liberal women, preferably of color or a minority, to the Court. I have known since FDR tried to stack the Court that is where the power to change the course of the nation. I want a liberal court as much as conservatives want a conservative one. So who's still pretending Justice is blind? That Justice is just? Really, grow up, America. The US. is becoming more liberal which each generation and the White Male rule is diminishing, and rightly so. White Men have controlled this country for far too long. Take a look at Grassley and Hatch. These two dinosaurs are in charge and ready to confirm an alleged sexual predator to the highest court in the land. Why? Because he's a conservative. How dare they. How dare the American people see this, and allow this to continue. We shall see come November if America has had enough.
DD
Manhattan
3
Let us be clear. I don’t pay my taxes because I see government as legitimate, but because I make the kind of money that increases the likelihood of an IRS audit and I don’t want to risk being convicted of tax evasion, going to jail, and losing my accumulated assets. As a trial lawyer, I say “yes, your Honor”, but not because I necessarily honor or respect the particular judge (there are a few I actually do, but only a few); rather, I say “your Honor” because you sort of have to. I don’t respect a cop’s badge or position, but he has a gun and belongs to the biggest armed gang in town, so I say “yes, sir” when he addresses me after pulling me over for speeding to give me a citation.
Government is a necessary evil—some are obviously better than others, but I have never associated the word “legitimate” with Congress, the president, or the Supreme Court. They have certain concrete powers over us, and that’s the beginning and the end of it.
4
The Supreme Court was created to apply the Enlightenment principle of individual rights to concretes. Rejecting principle, it careens between living constitution and originalist concretes. The intellectual chaos ,not the Kavanaugh nomination ,is destroying its power to protect individual rights.
Pure hyperbole.
It’s not illegitimate just because you don’t like the justices.
3
The Supreme Court should have ruled that denying Pres Obama his pick of Garland was unconstitutional, and honestly a treasonable offense. That is if the spineless Democratic leadership had sued, or done whatever it takes to get the case there.
4
Kavanaugh is the perfect example of what is wrong with Supreme Court and why it has already been corrupted and illegitimate. Under normal circumstances, considering Kavanaugh's potential sexual indiscretions, he would withdrawn his nomination and the next Conservative ideologue in line would take his place but he is obviously such a total tool for the establishment they do not want to let him go. He will vote which ever way he is told to vote, they have been grooming him for years and they have too much invested in his tenure.
5
It's already over, done, finished. The USA is a walking corpse. We have no one to point at but the person we see when we look in the mirror. The only question, if you know ANYTHING about history you will find a half dozen predecessor examples, is how long the United States Marine Corp can hold the gate. If your thinking is along the lines of, "If only those others weren't evil," you can take pride in your problematic existence.
The Supreme court has already lost credibility. In overruling Florida law in Bush vs Gore and in Citizens United it has shown itself to be not in the best interest of the nation, and that was even before Mitch McConnell blocked Obama's moderate candidate. Any nomination by Trump will only lessen respect for the court.
3
Anybody who thinks the supremes are anything but a political office is not paying attention. Something similar to people who believe the NCAA operates is basketball tournament for "student athletes" whatever that form of humanity could be, instead of the many parties receiving lucrative compensation for the games. It's so blatant that the country should candidly admit it and consider amending the constitution to make these elective offices with terms of office.
2
Five of the nine (assuming Kavanaugh or similar is confirmed) will have been appointed, not to enforce the Constitution, but to prevent its enforcement.
There's the crisis.
7
Since we are electing too many politicians that do not reflect the will of the people but reflect the will of the money the rich and powerful are the ones getting their legislation passed and people confirmed.
It's called campaign finance reform WITH TEETH. Do it now or risk a long term alienated electorate or worse and yes it's already bad enough as it is.
2
The only partisan aspect of the supreme court is when liberal justices attack the constitution to advance progressive policy. We need more conservative justices to bring common sense to our nation.
2
@Patrick McCord, The views of conservatives represent the minority views of our nation. A court of conservatives would only extend that injustice.
Sadly, the Supreme Court has become just like many regulatory agencies in Washington, such as the National Labor Relations Board, Federal Communications Commission, and the Federal Elections Board. On closely contested issues, All divide strictly along party lines. We once took heart that the agency decisions were reviewable in the federal courts and, potentially, by the Supreme Court. Not any more.
3
The problem of the Republican judges can be addressed by measures short of a constitutional amendment which improve the process of litigation. For example, judges with strong political or ideological views, or other conflicts, could be required to recuse themselves from cases which implicate those prejudices. Today, judges make that decision themselves and it is essentially not reviewable. Also, parties to a case could have the right to reject a judge from hearing their case, as they now have with potential jurors. Such measures would require a larger pool of judges, but would be bipartisan going forward, and would neutralize the destructive effects of political appointments that have already been made.
Despite you analysis of how liberal the Democratic appointed are compared to how conservative the Republican appointed ones may be, I invite you to look at voting patterns. In almost all the 5-4 votes in the past 50 years, it has been a GOP appointed Justice who has cast the swing vote. Disregarding their diversity in opinions, the Democratic appointed Justices vote en bloc much more often.
2
Term limits appear to be a notion worth exploring, as might an age limit. In Australia, the mandatory retirement for a justice of the High Court – our equivalent to your Supreme Court – is 70 years of age.
But should term, and possibly age, limits extend beyond SCOTUS? Should it be explored, too, for members of the House and Senate? Limiting tenure could eradicate a sense of comfortable lifelong entitlement, ensuring representatives don't become too out of touch with the communities they represent, as well as injecting fresh ideas into the system of government.
6
@Jennifer Yes it should! Term limits for ALL government servants.
One cannot look at the SCOTUS in isolation. The entire political system, all the democratic institutions and the entire legal infrastructure, work together as one giant system that controls society and which society has control over. If part of the system isn't working properly, another part will step up to fill some of the gaps.
This dynamics explains why the SCOTUS has become political in the first place. The political system in the US has been very polarized compared to that of most other Western democracies since many decades, and much more so in the last decade.
Decisions that in most countries settled via the ballot box (e.g. abortion, gay rights etc.) tend to be settled by the SCOTUS. That's not a healthy situation, and because this has become a chronic situation, the SCOTUS becomes itself subject to politics. The fact that the SCOTUS can make decisions irrespective of public opinion makes it a useful political tool for the political forces who are the most out of step with public opinion.
But if Republicans get their way and e.g. manage to get Roe v. Wade overturned, the feedback on public opinion will cause many people who tend to support conservative candidates but who are not socially conservatives, to change the way they vote.
So, what looks like a big win due to manipulating the SCOTUS will eventually cause political losses, politics may become a less polarized allowing issues like abortion to be fully settled by the political process.
5
I fear that the Roberts Court can never recover its reputation for equal handed Justice. Thomas, Alito, and Gorsuch are radicals. Kavanaugh, if confirmed, is a political operative hiding in the Judiciary. Roberts is a closet moderate, who rarely appears at the Court. Only time and new Justices can remove the stain that the Federalist Society and his funders have imposed on the Court.
4
Because the Supreme Court is partisan, the issues it has and can pass judgements on have greater consequences that could affect the lives and welfare of millions of people for the worse as much as for the better, it risks becoming a dangerous tool outside the aigus of The People.
This is of particular concern not just because of whether Judges are predominantly Conservative or Liberal, but in the case of the Conservative Judges being appointed today, it becomes a clear danger due to what that "Conservative" means and stands for these days and the clear implications it means and has for so many Americans.
That means a Business or more specifically Corporation friendly group of Judges who will adjudicate positively on cases that clearly advantage a business and potential to profit over the safety, concerns and wellbeing of the people employed and/or dealing with them. It also means adjudicating for the best interests of those who appointed them over and above the needs and best interests of the people who vote them in or out or in the ways used to hold onto power despite being against the expectations of a Democracy and Nation such as in the case of Gerrymandering.
Given that Judges have Lifetime Tenure, a Supreme Court with a Majority of "conservative" Judges means that all Americans are subject to the rulings of 5 Judges whose agenda differs greatly from their needs, majority expectations and beliefs.
How can 5 people be allowed to control the destiny of 320 Million?
4
When Ruth Bader Ginsberg broadcast her political opinion in the NYT two years ago it was clear any sense of impartiality had left the building.
We should have established term limits for these positions long ago.
We should have established rules on handling of public comments or publications outside the courtroom meant to influence elections based on the personal opinion of a Supreme Court justice.
We should also establish an ethics review on gifts, vacations, services, donations and payments provided to anyone in the Supreme Court, including any employee.
These three things should restore confidence.
3
@Margo Justices are allowed to have political opinions and belong to political parties. Just because she wrote about it doesn't mean it infiltrates her decisions. And I'm confused, you state political opinion, but then you state personal opinion. And your "these three things should restore confidence" comment is delusional. You really think establishing an "ethics review", rules on handling commentary (when everyone has free speech) and term limits will solve everything, huh?
The SCOTUS has been broken for a LONG time.
1) Bush v Gore: the ruling could ONLY be used by Bush. No one else, ever. So much for "overarching philosophy".
2)They are not "normal folks". I've never been to the opera with Ginsberg or Scalia and I've never been given a freebie like Scalia got to the most exclusive hunt club in the USA.
3) Not one has ever said, "You can't make stuff up"... like Scalia's fantasy legal system, "Originalism".
4) No one on the SC ever called out Congress and their illegal refusal to give a hearing on Garland. Nor did any SC justice howl at the statement that if Clinton won that she would be denied ANY choice for her entire terms.
I consider the SC broken, usurped by the right-wing and of no use to the future. It follows no ethics code, loves its freebies, and has no problem with the "Freedom Caucus" dismantling every law ever passed.
They have become "a clear and present danger" to this nation, as silent as Thomas and as dead as Scalia.
I foresee the future court to be simply a half dozen "good ole boyz" sitting around swapping photos of their sexual conquests and pelting the women on the Court with pieces of doughnuts when they dare to enter the room.
To me, the Supreme Court is dead and it has been for the last two decades.
There is no "reviving" it.
RIP
8
@rosa: One only has to ask these phony "originalists" what an "establishment of religion" is to establish what abject fakes they are.
2
@Steve Bolger
Ohhh, I like that, Steve..... but we really don't want to give them ideas, now, do we?
My stickler has always been "slavery". They said, Oh, yes, we have it but it will all be gone in 20 years or so. And then they kept it for another 50 years after that. Scalia never wanted anyone to ask him about that. He was afraid he'd have to admit that, yes, they wanted slavery, had no intention of getting rid of it until those slaves were pried from their cold, dead hands.... along with their guns. And, remember: Scalia was the one who said, for the first time, that the Second actually applied to individuals NOT a militia.
What a scammer. If he'd had his way slavery would NEVER have been made illegal.
The danger of a partisan court is great when we have pusillanimous legislators who will allow the court to legislate from the bench in order to save their own skins. This will only result in more of the same - a do-nothing Congress stuck in eternal gridlock. Unfortunately for liberals, individual liberties will take a back seat to the power of corporations and the powerful will continue to dominate the weak for generations to come.
Term limits for Supreme Court Justices would be a much-needed miracle to restore a true sense of justice to a rabidly politicized Court. It is not a good sign when we can easily predict the outcome of a decision before it is made. That is not justice. It's just the dirty game of politics as usual, even if the deciders are wearing black robes in a fancy building with pillars.
4
Nobody from the left proposed term limits or court-packing when the Supreme Court had a decidedly liberal orientation and to do so now shows a sorry tendency towards a have-one’s-cake-and-eat-it-too mentality that is at the root of many of our problems.
4
@Larry
No, it demonstrates that this court is out of touch with the will of the people more so than any court in recent history.
Expanding the number of Justices would be a good idea. Not to overcome the the present conservative ( heavy ) leaning court but to better reflect the size of the population we have now and the diversity of the population. Along with this we should re examine the number in the house. It would be harder to control or pack a larger house. The house may not have anything to do with the court but i think expansion of both would set a tone of government by the people. That the ultra conservative wing of the Republican Party has become the Ruspublican Party is obvious. That they are establishing a single party dominance is also obvious. A single party run by a minority that has more in common with Russia or China than the country envisioned by our founders. This is a coup plain and simple.
3
McConnell's decision-- supported by every Republican senator--to deny President Obama's nominee to SCOTUS even a hearing for nearly a year was in itself outrageous. Unfortunately the confidence that Sec. Clinton would be able to win the presidency was high enough for Democrats to postpone the fight for any nominee. That turned out to be a major mistake. President Obama and the Democratic senators should have fought McConnell with every tool they had, including shutting down the government, until Judge Garland was given an up or down vote.
To follow the McConnell stealing of an open Supreme Court seat with the Kavanaugh nomination was rubbing salt in the wounds of the Democratic party. Kavanaugh was a fierce partisan in the Clinton years and even worse in the Bush II years during the Iraq foreign policy debacle. Without the documents available to review his actions during those times, pushing through the nomination was one more insult to the Senate traditions of superficial bipartisanship when considering important nominations.
Kavanaugh's nomination has turned out to be a worse case for Trump. Kavanaugh's character is attacked for binge drinking combined with sexual assault and unresolved financial issues: An unfit nominee from an unfit president.
If the Republicans push this nomination through, SCOTUS and its decisions will be stained for at least a generation by the ideology of the nomination. The presidency is already considered illegitimate. SCOTUS is next.
5
We cannot change the terms of service on the court without amending the Constitution. We do not dare attempt any amendment now in the present over-wrought condition of American politics.
As to C.J. Roberts, well he is ever mindful of his place in history and it is the only restraint. But if he and the Federalist Society get their 5th vote, there will be a reign of judicial terror.
And yes, the court has long since ceased to be barely disguised as judicial. It is a legislative body, one not contemplated in Article I, one that Article III in no way envisioned taking on the cloak of supreme legislative authority -- the third and most powerful branch of the national legislature. But that is what it is and has become.
The solution? Again requiring constitutional amendment and so not attainable? A retirement requirement at age 70 or 72. Not a term limit in years but by age. Our N.J. Supreme Court has one and it works just fine. And that retirement age would be a mandate for all federal justices.
Lacking that, and we will go on lacking it, the court is a grand hypocrisy, is on the verge of capture for 30 years by the revanchist, reactionary far right and puts not interpretation of the Constitution into our lives, but instead injects ideological dictates of its meaning into American life on subjects on which the justices made up their minds decades ago based on upbringing, theology, race, bias and narrow self-interest and self-certainty.
5
To think that the transparent corruption of the executive and legislative branches of our government has not bled into the judicial branch Is folly. Citizens United, while not the beginning of this process, has certainly exacerbated the problem. A corrupt feedback loop is now in place that will require generations of highly motivated, intelligent voters to dismantle. If liberals, that many polls suggest are the majority in this country, finally vote and assume their appropriate representation in government then as a start I would have no problem expanding the court by two seats. I would call it court balancing. What McConnell and the repubs did with Gorsuch was and should be considered court packing. The vestige of our slave holding past the Electoral College should be immediately dismantled. Citizens United should be legislatively reversed, strong, enforceable anti-corruption laws along the lines of Warren’s latest proposal should be enacted.
3
"the court to embody the American ideal of democratic government — powerful yet humble — and many people have revered it as a result."
Which is bizarre, considering that there is nothing democratic about the court system. Indeed, it was designed to be shielded from popular opinion.
As for "reverence", Republicans lost all reverence for the court after they struck down 40 state laws on flimsy legal grounds, to fulfill a liberal agenda of deregulating abortions. Since then they have considered it a power center to be captured.
1
SCOTUS is a completely political body. The justices make their decisions based on personal beliefs and opinion and then rationalize it to the best of their abilities. The terms should be 10 years at the longest. We need people who reflect the electorate and their ideas of justice, not some antiquated belief. Furthermore, the justices should be voted on by all Americans.
2
Having read Biden's statement regarding judicial appointments close to an election, let us be clear: It was not a declaration! It was a rumination, suggestion, thought!! Of course, the Republicans jumped on that as justification for what they did to Garland. Conniving, craven, political action, for which they will pay the price.
As to the Court, the Court needs some diversity of experience. With the loss of Sandra Day O'Connor, the Court lost a member with real world electoral experience. The Court needs at least one member who has served as a Governor and understands what it is to be responsible for running a state and ensuring that its citizens are cared for. In addition, the Conservative side of the current Bench is activist-and this needs emphasized frequently. This group has made a deal with their conservative backers to undo all legislation that benefits women, minorities, consumers, voters, immigrants and on and on. It is this group that has politicized the Court!
Once we get a Democratic Senate and President, unless one of the Republicans resigns or dies (Thomas is 70?), the Democrats should add two members to the court and fill the vacancies quickly, finding young, minority jurists to fill the seats.
AND REMEMBER, VOTE IN NOVEMBER.
2
The word anachronism was created for our Supreme Court. Akin to the Oracle of Delphi, we have 9 priests of the law at the temple of the Supreme Court ready to give us the rules we live by. They are there for life, they are the final word, they are supposed to above the politics of the land. It is patently absurd. If Americans don't find ways to adapt our government to modern realities, we will continue or descent into chaos.
3
I like you David Leonhardt - you're smart and astute. But, I have to say you are almost always late to the game - way, way late.
The crisis in picking Supreme Court justices and the legitimacy of the court itself already has been in question since Clarence Thomas took the bench. It was obvious then, and it has been reaffirmed countless times, that Thomas is an incompetent ideologue. And there have been and are others as well - Fortus, Blackmun, Scalia, and Alito.
But, I think for many people the legitimacy of the Supreme Court was finally lost for at least a generation in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Until that is reversed, or the Congress passes campaign finance legislation that levels the playing field, the SC will be viewed as hyper-partisan.
Yes the SC has been going downhill and reached a new low with McConnell's un-Constitutional move to deny advice and consent to a sitting president's nomination, and then change confirmation to a simple majority.
Frankly, it is hard to see how the SC will ever again become a co-equal branch of government. For that, the blame rests squarely on the right-wing extremism in America which has forsaken democratic values and Constitutional principles to pursue an autocratic plutocracy that observes a new Golden Rule - whoever has the gold makes the rules.
4
A thoughtful and thought-provoking essay.
Leonhardt forgot what was perhaps the most outrageous decision of the Court. That is Heller. there were many clear precedents. 7 or 8 previous decisions that held that the Second Amendment did NOT confer the right on an unfettered citizen, one not a member of a "well regulated militia", to own a gun.
"fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.
7
"But this is laughable"
Unfortunately it is not.
No court of law in any part of the world which purports to levy justice on those brought before it should ever be derided in this manner. If justice is allowed to even be considered from a partisan political standpoint it can no longer be considered just, let alone funny, either peculiar or ha ha.
That our highest court actually determines law based on a partisan political basis severs any decision from the concept of justice. That these men and women know this is a testament to a personal corruption which is inexcusable.
We are a nation of just laws or we are not.
At this point we are not.
And it is not laughable.
6
“This partisanship (is) …why Republican senators took the extreme step of denying Barack Obama the ability to fill a seat…. Hypocrisy isn’t good for credibility.”
Nor is watching this happen and doing nothing about it. Should the Democrats take power in the house and hopefully, senate, there should be impeachment proceedings and a censure of McConnell for this unconstitutional action. The same should be done for such atrocities no matter what party attempts it.
With regard to term limits, in theory, it is the life-long appointment that frees jurists to behave in a non-partisan way. Thinking wistfully back to the past, it was the need to get the consent of both parties with 60 votes, that leads to the appointment of more moderate jurists.
Step one: Put Democrats in power.
Step two: Reinstitute the filibuster.
Step three: Elect a president with a functioning brain.
Step four: Get rid of the electoral college so that the popular vote determines who becomes president in the first place.
The list can go on, but it would be a start.
7
@SC
Getting rid of the Electoral College has become my mantra and battle cry. It's easy to forget these 200+ years later what a radical idea this democracy stuff was, and that the Electoral College was a hedge against things not going to plan. Now, the Electoral College is a hindrance to true democracy and needs to go.
According to the gov website the SC receives some 7500 (!) cases a year. About 100 are decided without plenary review; there are some 80 that continue to oral argument. Over its history that amounts to hundreds of thousands of petitions - wow. I recommend two recent historical reviews which address two important issues in our democracy- bribery and corporate status: Zephyr Teachout’s “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United”; Adam Winkler’s “We the Corporations: How American Businesses Won Their Civil Rights”. In the former, “bribery” has evolved from the giving of ANY gift - the red line concept - to ‘we cannot tell what the intent was’. In the latter cases, corporations (which subsume ‘people’) should be granted the constitutional rights of ‘people’. What becomes apparent is that the views of the court reflect the views and behaviors of the ‘governing’ class and NOT the majority of Americans. In large measure this reflects the money needed to bring cases through our judicial system. I do not see hope for significant changes in my lifetime.
4
If it takes a future conservative Court to nip outrageously expensive climate change regulations that will only benefit other nations or potentially unlawful taxes to pay for the pie in the sky single payer system the Democratic Party now seems to support then so be it!!
In Federalist No. 78, Hamilton/Publius referred to the judiciary as the weakest of the three branches of government. It is now, clearly, the most powerful and the least democratic of the three branches: The Federalist Society has a much bigger role in appointing justices than do we the people in these neo Lochnerist times.
With grabbing and maintaining power being the engine driving party politics in super-capitalist America, of course the Court has become partisan. And unabashedly so; witness absurd decisions like Citizen's United and Heller and their even more absurd majority opinions written by so-called "originalists".
In 1795, chief justice John Jay resigned from the Court, saying it lacked "energy, weight and dignity". Applied to the current mess of court, only the dignity is lacking.
5
If we are reduced to depending on Roberts as a savior of the Supreme Court's respectability, we're in worse trouble than I thought. What started as grumbling over the Warren court's "activist" rulings (Brown v. Board of Education, Baker v. Carr, Miranda, et cetera) has morphed into the religious right's outrage over abortion and gay rights. Thomas, Alito, Gorsuch, and now, Kavanaugh will probably go down in history as the worst nominees since James McReynolds. We are all the worse for it.
6
"But it is reasonable to hope that he will show more of the small-c conservatism that the Supreme Court needs. If he allows it to become an all-powerful version of Congress where the legislators happen to wear robes, both his legacy and the country will suffer."
Roberts is a product of federalist society's propaganda. The "society" hates the federal government because it collects taxes and redistributes the money. There is nothing noble about a bunch of rich guys plotting to avoid taxes.
If the irresponsible southern and mid western states understood that they get back more than a dollar for each dollar paid in taxes, they would never vote republican or conservative! Oh, wait... I forgot endemic racism.
5
Since Congress has grown ineffectual, both POTUS and SCOUTS has taken up work of the legislature. Neither seem to craft worker friendly policies. Hence libertarians want to abolish government while socialists want it to be more supportive of ordinary citizens. Either way, few are happy with the status quo as it currently stands.
2
Too little, too late. The Kavanaugh nomination is the final nail. The Supreme Court is irretrievably
corrupted and has no legitimacy left.
6
Oh please
The Supreme Court makes things up, left or right depending on their political preferences.
The constitution is silent on abortion and limits guns to the “well regulated militia”. Even thought there should be, there is no constitutional right to privacy.
The constitution defines a procedure for constitutional conventions but no one has the nerve to convene one so the nine old men/women continue to wing it.
2
Sad to say, the Supreme Court, with not too distant decisions, and with republican-smelling partisanship, has been clearly geared to 'protect' the rich and powerful (and 'Citizens United' an awful political move to prove it); hence, losing it's credibility. As to how it can recover this stain while veering to the 'right' is beyond comprehension. At least for now, and likely for the foreseeable future (a generation or two actually[Ughhh!]).
4
At this point in political time, there is only partisanship. It's the most disgusting aspect seen in our government. It is so bad, in fact, that representative governance has become a sordid joke.
Sadly, the joke is on 320 million Americans. At the expense of the aging and needy, walls, military, trade and taxes have eliminated any sense of fairness.
How does this come to change? Term limits for partisan justices? America is at its lowest point right now and far too many of us won't be alive to enjoy a return to democracy. The job of correction is too great a challenge. We have lost our moral compass.
7
This is a much-needed argument. In the face of a corrupt executive branch and a paralyzed legislative branch all we have left is the judicial branch which seems be teetering at the brink of suicide by partisanship.
2
The Roberts court is consistently diminishing its moral authority to the point where impeachment of certain justices might become a real path to restoring its dignity.The current "elephant in the room" is Roe vs Wade.Soon conservative justices will focus their brilliant minds on the rights of the fertilized egg while taking away the rights of the individual who walks this earth.Citizens United and voter suppression ,not to mention Bush v Gore,are examples of this absurd orientation. Thomas and Gorsuch may soon begin parroting the thinking of Donald Trump.Roberts and Alito will do all they can to establish corporate monopolies.These are acts deserving of impeachment.The citizens of this country may soon realize that they have stood by while a judicial Frankenstein has been created by the the Federalist Society.In the end Frankenstein dies.Will the voter eventually kill this monster to?Let's hope so.
4
It would be hard to get rid of lifetime appointments, plus they have a certain logic. How about you can't be considered for the SCOTUS until you're sixty or sixty-five? Added wisdom, shorter term. Works for me.
1
The Court lost its legitimacy with Bush v. Gore, and has never recovered it.
5
Nothing is going to change. Forget the silliness
Trump says it right—we will have a strong republican court for a decade or more. If RBG quits it could be three decades.
The results will be that individuals, liberals, and minority groups will give up on the court. Why bother when the outcome is predetermined? It will become the sole regime of the rich and powerful
And Roberts and the other reoublican judges will celebrate—probably in the mansions of the billionaires who sponsored their rise to power. Why not? They won
America lost
3
1) Look up how John Marshall legitimized the Court. It's instructive about how the Court is authorized to govern.
2) Roberts is, indeed, a small-c conservative. He demonstrates that a justice doesn't always deliver as expected.
1
"Absent some kind of course correction, the court risks a crisis of legitimacy."
Because they don't agree with a Constitutionally-blind progressive ideology, it's not legitimate? Move to Europe if you want "progress." The US is far too busy being a rock in a sea of driftwood.
1
@JNew
I'm pretty sure we've become the driftwood...
Ever since the rise of the evangelicals--not Christians: they don't know Jesus' tow laws--have nominated only Roman Catholics to overturn Roe vs. Wade. We now have a court divided between two religions--neither is Protestant.
We need a court where independent thinking takes priority. Not religion.
3
Just read an article about how furniture is being handled by robots. Why not the Supreme Court, too?
Because we're human. Because humans wrote the law. Because the law is rarely, if ever, black and white. Because we need a human solution to a human problem.
Fight the robot overlords. Vote for term limits.
1
The next time we majority Democrats take the White House and Congress, we must enact the nuclear option and increase the Supreme Court from 9 judges to 13, or perhaps 21; the new ones being liberals selected by our Democrat President. This will dilute the chanced of decisions always depending on the vote of one judge and reduce their individual powers. Then, to protect us from future Republicans packing the court in return, start a constitutional amendment to protect the size of the Supreme Court. And perhaps another constitutional amendment giving women the rights to their own bodies to go along with their right to vote.
1
And with that, the Court will be finished. It will become totally politicized and subject to the whims of the party in power. The Republicans would dream up some further scheme when they regained power to neutralize the Democratic changes.
This will ensure death to the Supreme Court unless you get the amendment to protect size. Therefore I recommend adjusting your strategy to control of the Executive and control of at least a 2/3rds of either (a) both houses of Congress, or (b) the state legislators. Changing the court size without that precedent would be reckless.
Even ignoring the partisan breakdown of an enlarged court, the additional justices would bring an increased productivity which would be helpful to move justice at least a little bit closer to real time. All we need prior to that is a congress that legislates at 10X of their current productivity to ensure SCOTUS’s proposed increased productivity doesn’t “get the upper hand” in governing.
The bottom line is the Democrats won, they nominated a SCOTUS, his name is Merrick Garland, and the GOP never allowed the nominee to come forward so you are WRONG. You can’t have it both ways. The GOP, ie Mitch McConnell was completely out of line for not allowing the Obama nominee to come to the committee. If we are following your logic, the court would not have Neil Gorsuch on it right now.
The legitimacy of the court is in crisis now, it is not something that is open to be contemplated.
"American Ideal of Democratic Government" ... indeed! Nine individuals, ultimate rulers: is this government of the people, by the people, for the people? Would the people have voted "money is free speech"?
2
"A highly partisan institution"? Thus writer is only now seeing thus? Sheesh...its been this way for slightly over 30 years ever since Bork! It is no more or no less partisan today than in 1987. Yet, through it all, the Court manages to work - more or less. No, contrary to ehat the writer claims, there is no crisis now or looming on the horizon.
One reason for the Court's being more politicized is that everybody else--politicians, pundits, activists and ordinary people--is more politicized too. If a Court decision impinges on rights to collective bargaining, abortion, or health care for the poor, expect yowls from Democrats and cheers from Republicans--and vice versa. The practice of labeling justices or decisions as "liberal" or "conservative," popular in the media, politiizes everything instantly. The trouble is that it is often accurate.
"The Supreme Court Is Coming Apart"
Correction: Trump is •Tearing• the Supreme Court apart. In his efforts to remake the court in his own lying, corrupt, politically motivated image we are now faced with The Extreme Court. The very underpinning of our 240-year-old democracy are coming apart. Our founders are weeping.
3
The liberal problem with the Supreme Court is captured in this ‘criticism’:
“In the future, there is real reason to worry that the court will block government action on the two biggest threats to this country’s security and stability...”
Leonhardt would have us believe that blocking government action on the two biggest threats (as seen by liberals) would be a bad thing. In other words, the end justifies the means. But the Supreme Court is constructed specifically to see that it is the ‘means’ that is judged, not the ‘end’. The threat does not automatically justify any government action. And that is a problem for liberals.
A quick question: does Leonhardt think Korematsu v United States was correctly ruled constitutional?
2
Definitely, the Supreme Court needs to restrict its members to term limits--in and out in six years. Until that happens, we'll be stuck for life with ultra right-wingers like Allito, Gorsuch and Thomas. The latter should, of course, have never been allowed to serve on the court in the first place. And as for Kavanaugh, lt's hope he gets his walking papers by the end of the week or soon thereafter.
As Saudi Arabia breaks the egg and seeks to struggle into freedom, the United States with its now conservative Supreme Court heads in the opposite direction. With the appointment of Brett Kavanaugh, we are guaranteed at least thirty years of backward evolution. Reason will trump reason.
n the near future, we will program the human mind in the computer, and this will be based on a "survival" algorithm. Then we will all learn the truth of how we have tricked this survival program with our ridiculous beliefs about just what is supposed to survive. At that point, we can begin the long trek back to truth, reason, and sanity.
See RevolutionOfReason.com
History will not be kind to John Roberts.
The Heller decision, Citizens United, corrupting the (Garland) selection process...
It’s hard to imagine a more narrow-minded, destructive, antidemocratic and simply shameful Supreme Court than the Roberts Court.
4
America is in a death spiral, and nothing can save it. It appears the great democratic experiment is gasping for air, and on its last legs. What the future will bring is anyone's guess, but I'm glad I'm old enough I will not see it.
2
The Warren Court caused a crisis of legitimacy that is still with us. It got WAY out in front of the American people. And knowingly so.
1
Could there be an agreement (consitutional amendment?) that requires justices to be approved by a super-majority (60%, 66%, 75%) such that presidents would have to choose more moderate nominees.
2
@GMacDermid I really think you're on to something there.
The modern debacle that is the Supreme Court didn't start with Bork. It started with California in the early 1980s when a handful of conservatives allied with Reagan decided to mount a sustained attack against Rose Bird, chief justice of the state Supreme Court.
Conservatives in the state had long railed against the precedent-setting rulings of California's highest court, but were powerless because the all-male institution was deemed untouchable. Then came the first woman, appointed by Jerry Brown in 1977, and all bets were off.
First they tried to recall her--three times--but failed. Then they mounted a vicious campaign when she ran for re-confirmation in 1986. In the end Bird was defeated. Two other liberal justices were brought down as well. The next year, when Reagan nominated Bork, it was payback time.
The courts have been disastrously attacked ever since. Term limits are needed, asap.
3
Leonhardt correctly points out that the Supreme Court is largely partisan. He hasn’t laid it out, but the GOP appointees are pro corporate and pro extreme evangelist (quite in contradiction with separation of Church from State). The notion of government by and for the people still reigns; it’s simply redefined “the people” as a handful of billionaires.
4
The Senate should restore 60 votes for all Federal Judges - NOW!
The Court has become totally politicized.
The Senate vote should be 100 to 0.
Any Senator voting in the negative does not belong in the Senate.
Partisanship is but one factor in the court's loss of credibility. The second is the process of electing an individual to the court. The Senate must return to the 60% super-majority rule it once held as politically sacred. Unless we have a plurality, not a simple majority, of Americans who support a nominee, every nominee; liberal or conservative, will be questioned during their entire tenure on the court.
2
That horse is out the gate. Do not restore the 60 vote rule until Democrats can pack the court.
I'm not a conservative. But it's difficult to imagine this article appearing if there wasn't going to be a reliable(?) conservative bloc on the court for the foreseeable future.
In other words if Clinton had won, put two solid liberals on the court, and possibly had the opportunity to replace Thomas or Ginsburg later on, would liberals be upset about that? Would they be crying crocodile tears about the legitimacy of the court? No they would not.
The bottom line is that the side that wins elections gets to shape the court. Liberals lost. Nothing is permanent. Maybe the midterms will presage an utter and complete Republican defeat in 2020. I don't know. But I do know hypocrisy when I see it. The Supreme Court does not become illegitimate simply because conservatives won.
5
Merrick Garland.
1
No, it becomes illegitimate because when Liberals won, conservatives cheated. Merrick Garland. The current court is already a farce with no accountability and no honor.
1
@lilo: I fear you are a bit behind in seeing how things are going. It is not elections that determine who governs, but those who control the elections. At present these are the Koch bros, the Sinclairs, the Uihleins, the Wilks, the Mercers and their reality redefining propaganda machine.
2
As Saudi Arabia breaks the egg and seeks to struggle into freedom, the United States with its now conservative Supreme Court heads in the opposite direction. With the appointment of Brett Kavanaugh, we are guaranteed at least thirty years of backward evolution. Religious beliefs will trump reason.
n the near future, we will program the human mind in the computer, and this will be based on a "survival" algorithm. Then we will all learn the truth of how we have tricked this survival program with our ridiculous beliefs about just what is supposed to survive. At that point, we can begin the long trek back to truth, reason, and sanity.
See RevolutionOfReason.com
1
Confirmation of Clarence Thomas was the beginning point and the denial of Obama's nomination of Merrick Garland was the breaking point.
5
I fear the possibility that the Count shrinks, from 9 justices (or maybe 8, if BK isn't confirmed), to 7, then 6, etc. if we end up with confirmation gridlock, which appears a distinct possibility. What would this mean for the majority, which could swing wildly and inconsistently relative to election outcomes? What about the enhanced role this scenario would present for the lower courts, if rulings are left to stand because the Court is deadlocked?
We have to get rid of Citizens United before real damage is done. Not only will foreign governmentsl be putting forth candidates and financing elections but drug cartels will get involved. There is not much backbone on the court now and the future looks worse.
4
A return to the Senate 60 vote rule would help. But that is now in the dust bin of history.
2
On Roberts becoming less partisan, ideological, or whatever, I fear you're dreaming. The only hope there is that he actually has an intellect and uses it.
I doubt the capacity of today's Conservative justices who operate like automatons and whose 'ideas' seem generated less by experience and thought than by the right wing belief system they seek to promulgate.
Didn't the founding fathers, who today's capital 'C' Conservatives claim to revere, believe that factionalism was one of the greatest threats to the Republic they were creating? Today's Conservatives embrace factionalism. They appear to be deliriously drunk on it.
In true liberal fashion, I make two conflicting suggestions: we must not give in to the antagonistic impulses inspired by Conservatives' shenanigans, and we must forcefully counter Conservatives' proposals. Calling people names and expressing contempt for their, yes, often bad ideas will only feed a stupid fire; and, at the same time, look where trying to address Conservatives' concerns and even adopting their plans, on health care for instance, got us.
2
Yes.
Currently it is occupied by a breathing cadaver, and another that cannot maintain a diet -- with medication -- for functioning health.
Apart, it is rifting.
We have had popular vote Democratic victories in six of the last seven presidential elections; and yet with Kavanaugh (?? or whoever replaces him as nominee) we will have a Republican nominated court for a generation. We need a constitutional amendment NOW.
3
@Andrew
We need to abolish the Electoral College!
1
It was perfectly legitimate when the left was winning.
3
Merrick Garland proves how wrong conservatives are. When the left was winning the right changed the rules. The current court is no more legitimate than a roomful of Harriet Myers.
4
Sure, Mike. Merrick Garland was legitimate. Neil Gorsuch an Brett Kavanaugh are not. Hence the disdain for congress and the illegitimacy of the court among the majority who has been winning but has not been rewarded with their deserved spoils of either the presidency or the now-illegitimate court. Democracy in the USA died with Bush v Gore. Trump and the GOP preside over a zombified carcass of our once proud Democracy.
1
The Supreme Court needs to be reinvented. Lifetime appointments of unelected jurists who make laws outside the consent of the people undermines any notion of the rule of law. Justices enjoy the legal power absolute monarchs. More than a few Americans resent this. Respect for the court and the laws of the land wither. After the Garland stall, then seating Gorsuch, appointed by a potential traitor, now this sick excuse Kavanaugh, disgust for the Court is a tepid description of what many feel for this anachronistic dinosaur of an institution.
4
" ... Republican senators took the extreme step of denying Barack Obama the ability to fill a seat ... " Indeed. That is not "advice and consent", that is abuse of power by Mr. McConnell. Even worse: "Cruz suggests leaving Supreme Court seat vacant if Clinton is elected" (Chicago Tribune, Oct2016) How blatant can they get putting party above country?
3
Good luck with amending the Constitution to get rid of lifetime appointments.
Might as well add (1) money is not speech; (2) corporations --and fetuses -- are not persona: and (3) an economic bill of rights. And repeal the Second Amendment.
3
The Court is already illegitimate. Bought and paid for. California should openly oppose it. Milquetoast senators are hand wringing over Kavanaugh's gross behaviors. They should just come out and say what we all really know: both Gorsuch and Kavanaugh are illegitimate and should removed.
4
When you know with almost certainty the way a judge on a court is going to rule because of what party put them on the court how is that Supreme? A court that was designed to be above politics is very political.Every so often a justice might give us a glimmer of hope when they go against the party that brought them to the dance.When Roberts let Obamacare live the party that brought him wanted him drawn and quartered. Maybe it is time to restructure the court but in reality with our political climate that will never happen.
3
FDR faced a similar problem. He tried to solve it by threatening to pack the court. Conventional history says he fiailed and it cost him politically. I think he won long-term by provoking the famous "switch that saved nine." Of course being elected four times helped too.
So now let me get this right, are you suggesting justices who follow the Constitution as it is written are radical, and justices who try to reinterpret or work around it are moderate???
Should we start wearing gloves on our feet and boots on our hands?
1
Money is speech in the Constitution? Corporations are citizens with religious rights in the Constitution? The Constitution was written as an unstable document is in the Constitution? Please. All the litigation from the court, all the activist judges, are hyper-conservatives, installed by a radical GOP precisely BECAUSE of their extreme views.
2
Democracy 101: Only legislators should have the power to make laws. Same-sex marriage or abortion - for instance - should not be able to be made legal or illegal due to the decision of a court. The US is living with the NEGATIVE consequences of having a Bill of Rights.
Also: Retirement at age 70 is mandatory for justices of Australia's equivalent court (its High Court)! Enough with the gerontocracy (in your Supreme Court and Congress too) already!
2
The court is in place precisely to guarantee that the tyranny of the majority does not override the fights of all citizens. In your countless dystopia, segregation and even slavery could return. Granted, our court is a mess now, the result of years of radical conservative meddling.
1
I have read and heard these arguments
for term limits and cameras in the
courtroom for 40 years.I remember
when former Justice Souter proclaimed
that cameras would come in over his
dead body. these arrogant men and
women make their own rules and don't
give a darn whether we the people,
their employers, like it or not.this is
one heck of a job:,you work from
October to June and spend a good deal
of time "studying "the legal systems
in some beautiful countries. you are
well paid and have 24 hour security.
having said all that, 18 years sounds
about right.why doesn't the Congress
have enough guts to amend the
constitution and get this done?
as for cameras in the courtroom,
this should have been done decades
ago.for goodness sake, it's long past
time to bring the court into the twenty
first century, whether they like it or not.
5
Excellent article I couldn’t agree more the scotus is a pathetic shadow of what it was intended to be. The current justices do a discredit to our nation even if their robes block that from them. Time to change before more damage is done.
2
Terms limits for justices and appointment of replacements would work only if the Senate were required to consider judicial nominees in a timely manner -- not like the travesty perpetrated by McConnell over the Garland nomination. Any Constitutional amendment to set terms limits should also require that the Senate Judiciary Committee give any nominee a hearing within 30 days of his/her nomination.
2
The McConnell Court lost all of its integrity, impartiality, and credibility with Bush v Gore
3
We need term limits on judges and congress. Congress should not be allowed to take healthcare lobby $. Lobby $ stand in the way of truth. Greed is contagious.
2
Clarence Thomas's wife is a highly paid Republican lobbyist who brings her husband to lavish right wing parties. I'm sure she's paid for her keen lobbying acumen. Her husband doesn't even try to pretend to be neutral. The late Antonin Scalia died in the extremely expensive Presidential suite of a Texas ranch owned by a wealthy conservative with business pending before a court of appeals. These first two are (were) actually corrupt. The Federalist Society groomed every other conservative justice to enact a right wing agenda through the court. "Moderate" (yeah right) Anthony Kennedy picked his successor by resigning at the last possible moment conservatives could guarantee a confirmation, and may have secretly arranged to have his prized clerk (Kavanaugh) picked to replace him.
Sorry, the Supreme Court legitimacy thing has already sailed. It is a partisan body. A conditional amendment is impossible. Pack the court. Each party gets to pick a new court whenever they win the House, Senate and Presidency together. I don't care how loudly right wing hypocrites cry if Democrats succeed in 2020, they can do us all a favor and secede for all I care.
1
How about an age limit? Do not appoint anyone under 65 years old.
David Leonhardt’s analysis of the Supreme Court’s illegitimacy crisis only scratches the surface. Lawrence Weschler provides a more complete rationale: https://www.project-syndicate.org/onpoint/how-the-us-supreme-court-lost-....
One way to restore some semblance of legitimacy to the Court would be to initiate impeachment proceedings against Clarence Thomas. There is no doubt that he perjured himself in his confirmation hearings. Had the Senate done a complete investigation at the time, this would have become obvious.
2
An attorney and fully-lapsed Catholic, I offer this: The Supreme Court might be made less 'ill' if Catholics were barred therefrom (and evangelicals, and 'practitioners' of any and all other blind faiths -- including "conservatism").
It's time to change the antiquated SCOTUS Justice selection/life tenure process - basically, both the selection process and term should be mechanized. SCOTUS Justices now live far beyond the typical life expectancies of Justices in the 18th/19th Centuries and the reality of current lifetime appointments can create potential gerontologically related issues (despite RBG's apparent physical/mental resiliency) not envisioned by the Framers.
Also, there should be one representative SCOTUS Justice from each of the 13 US Courts of Appeal Circuits, each of whom should have at least 10 years tenure prior to elevation to SCOTUS. Each new Justice elevated from a Circuit Court should be selected based on seniority or some other equitable method as devised by their respective Circuit Court colleagues. Also, such new SCOTUS Justices should serve no more than 10 year terms and then revert back to their respective Circuit Courts whereupon a replacement SCOTUS Justice from that Circuit Court would be selected to serve, etc.
Finally, after being originally vetted to become Circuit Court of Appeal judges there should not be additional Senate review/confirmation of new SCOTUS Justices since the proposed increased number of Justices (i.e., 13 members vs. 9 members) and their limited SCOTUS tenures (10 years) would, over time, tend to produce more evenhanded decisions than does the current, heavily politicized SCOTUS.
1
The top levels of our three branches of government no longer function as designed. They have been captured by political parties that have themselves been captured by special interests.
Government in the USSR functioned this way, too, with a bicameral legislature and a court system. Even Rome during the empire period retained a senate. Emperors were elected by vote of the senate. (Dissenters were offered the hemlock.) Do not assume that a form of government defines function. No one would suggest that either Stalin's Russia or Crassus' Rome was a functioning democracy.
And it is the same here: "A recent poll shows that our government ignores the interests of the people on most major interests: healthcare, gun control, 'When a majority of citizens disagrees with economic elites and/or with organized interests, they generally lose. Moreover, because of the strong status quo bias built into the US political system, even when fairly large majorities of Americans favour policy change, they generally do not get it.'"
https://www.cambridge.org/core/journals/perspectives-on-politics/article...
1
The next democratic president should expand the Court to 15 members and appoint women to all 6 new vacancies.
1
I have had no faith in blind justice since Bush vs. Gore. Citizens United & Voters Rights cemented its place in the dustbin.
2
One more comment— many of us may feel under siege now, but wait until Trump has the opportunity to replace the Notorious RBG to know what the end of our country feels like. Remember this when you feel squeamish about packing the Court.
2
Congress could enhance the public's respect of the Supremes if they would merely hold all hearings regarding a potential Justice in secret, then announce the winner with a puff of white smoke.
Mr. Leonhardt is way behind: The supreme court has lost its legitimacy a long time ago – as mentioned in a comment below, remember Bush vs. Gore. – and has not improved since then.
But even more important is the loss of legitimacy of the two other branches of governement, with the GOP being no longer a party but "the most dangerous organization in world history" (Noam Chomsky) for its systematic policy of denying and accelerating climate breakdown.
And finally, do not forget the role of the FOURTH branch of government: the NRA.
This is the Roman Empire all over again (including the circus), and we know how that ends.
4
It is harder to pick radical judges when you need a super majority of senators to vote for them.
The elimination of the requirement for 60 votes contributes to the radicalization and partisanship of the court.
I would go as far a suggesting that the requirement to elect a justice should be the vote of 2/3 of the senators.
The more the United States approaches the example of third world nations where its government is concerned, the more likely will governmental change be implemented in the manner most frequently seen in third-world government change.
2
When I think of the Supreme Court, I dream of the last bastion of the hope that truth will prevail.
What is this truth? It is dream that non-partisans will use the Constitution as a guide to determine fairness and equality. I use the word "dream" because for the longest time in memoriam, the Court has been all about pulling it's vision to some extreme so that the middle-ground becomes a convoluted stomping ground between power and poverty.
When I say poverty, I don't mean to speak about about the vast gap between prosperity and impoverishment. When I say power, I don't mean the ability to buttress irresponsible positions but refer to the ability of money to corrupt history.
I understand the Justices that interpret the Constitution to bend toward the power of money. But I disrespect the power of the Court when it comes to ignoring the after effects of their own decisions that gift more and more power to money.
Money isn't a right to alter the American dialogue. Yes, money can grant those wielding it wildly, a sense of unworthy power that is disproportionately enticing. Money wields power and power wields outcomes. But the Supreme Court should sit high above any power that comes from mere money.
Money corrupts and the Supreme Court has an obligation to our citizenry to mitigate the effects of the power of money. If the eight justices care about their institution, then they have to stand firm to the power of money.
2
The Supreme Court's "crisis of legitimacy" happened when it stepped in to award George Bush the presidency over Al Gore instead of letting the people conduct a recount in Florida. It was made worse when the court treated corporations as people with Citizens United.
It is clear that these Justices know nothing more than the average man on the street about jurisprudence. They make up their decisions as they go along based on their "feelings," supposedly backed by case law that in itself is subject to interpretation.
Justices who say that they will approach their job free of political ideology are simply lying to everyone. We, the people, are complicit in this fantasy that they will approach cases free of the ingrained bias and political ideology that led to their nomination in the first place.
When was the last time these Justices actually met the people whose lives their decisions actually impact? They are removed and protected from the actual workings of every day society. Americans have no choice but to accept their 'legitimacy' .
The kind of hair-splitting lawyers are trained to perform in most cases inevitably leads to a stalemate and so the court is deliberately designed to have 9 justices to break the tie so that "majority rules". That's not justice. That's game playing.
There is no crisis, the court is only as legitimate as those who pay for Justice say it is and for as long as people pretend that it is a fair and impartial institution.
2
Enacting term limits is, by far, the most practical and effective solution.
4
I think the Supreme Court has lost all credibility and has become too partisan to be respected as the highest opinion of law and the Constitution. I think the Clarence Thomas fiasco and the Court basically electing GW Bush as president was the beginning of the end. It has all been downhill from there. They no longer follow the rule of law but the rules of their personal political party.
4
Probably already mentioned here, but I've found Kavanaugh's days of huddling in the White House has painted him as purely political, just on that basis alone. Now, perhaps this has been done in other nominations, I wouldn't be surprised -- Dems and GOPs. In any case, it smacks of politics and taints the nominee. Wouldn't it be nice if Justice nominees receded to their chambers (emphasizing separation of powers) and let the politicians work on the politics of the nomination, and let the nominee present him/herself without political preparation? Come on.
1
The Supreme Court coming apart like the whole US coming apart in at least 3 ways. The haves and have-nots: the division between the wealthy and everyone else is unprecedented. The urban-rural division where rural citizens seek to protect traditional ways of life in the face of global change. And geographical - the Pacific west is so unlike the Old South it is like a different country. Why a self-righteous crook from Alabama has say over California against the will of its citizens is not in the constitution. Split it up, let us follow our own paths, this conflict is harmful and counter productive. If they want a corporate theocracy in Alabama (for example) let them, just don't force it on us.
2
The court has always been political and partisan from its very beginning, a history of which you seem unaware. Dred Scott, striking down the income tax in Pollock for reasons that remain incomprehensible, rejecting New Deal legislation, "liberal" rulings that resulted for calls for Earl Warren's impeachment, Bush v Gore, equating unlimited political contributions with free speech, rejecting centuries of understanding of the scope of the 2nd Amendment, etc, etc.
2
I notice the outrage in most people’s comments here (including my own) but I’d remind everyone that Republicans don’t see it this way. They are proud of capturing power in the courts, as well as everywhere else. They do not see anything they’ve done, whether it’s Bush v. Gore, or preventing Obama from nominating a replacement to Alito, as undemocratic or unfair. Republicans like to win, and will do almost anything to do so— including looking the other way when Putin helps them win an election. This isn’t hyperbole, but a reality. The sooner Democrats truly understand this and stop fighting among themselves, the better. Let’s focus on winning too.
5
"The first is that the court has become an intensely partisan institution that pretends otherwise."
We can thank Justice Scalia, in particular, for taking the court on that road to partisanship. Additionally, he reveled in the limelight and actively sought it. He apologetically touted his connections with the Federalist Society and its political leanings. Gorsuch is also a member as is Kavanaugh. In today's politically charged atmosphere it is probably too late to expect less partisanship on the part of the Supreme Court. The system of "checks and balances" envisioned by the Founders has collapsed.
1
@Etienne The system of checks and balances has not collapsed. It simply isn't being used. To avoid the appearance of "making law," most, if not all, of the Supreme Court Justices will leave it to Congress to make or repeal laws. It's Congress that has collapsed. Not the system of checks and balances enshrined in the Constitution.
The reactionary Supreme Court is destroying our Republic in ways already described. I agree that it now is essental that we work to elect Democrat Presidents and Congresses for the foreseeable future and reduce the Court’s effectiveness by swamping it. But what do we do about the rest of the judiciary that is being transformed by this presidency and congress?
2
the Supreme Court sacrificed its legitimacy with Bush v Gore, the template for an activist judiciary making decisions based upon partisanship hypocrisy.
3
It could be that the court is partisan. Or it could be that the political Presidents who nominate Justices are good at figuring out which Justices follow a judicial philosophy they like. The latter seems a lot more likely than the former, which suggests that Justices are actively colluding with political parties.
2
My faith in the Supreme Court has, over the last decade, undergone a slow demise. The current McConnell/Grassley “plow right through” Kavanaugh debacle hammers home the final nail in the coffin. The author’s term limits suggestion seems worthy of consideration.
7
Institutional "reforms" for the Supreme Court such as 18 year terms will not be effective unless there are men and women of good will on both sides of the aisle. Consider the Russian Duma or the Chinese National People's Congress and the written "constitutions" of both nations. All are toothless. So I see the problem is -- how do we get Senators and Representatives who serve those who voted for them rather than those who paid for them? And this is also true at the state level.
5
@hsmith8, It's terribly important on both levels.We really NEED a Blue Wave!
The difficulty of fixing the court by amending the constitution puts the focus on near-term options.
The court should impose on itself the same code of judicial ethics which apply to the rest of the federal judiciary. If the court does, congress should codify the change by law. If the court fails to do so, congress should legislate the change. John Roberts completes his 13th year as chief justice this week: time enough to demonstrate by action his concern for the stature of the court.
By law change to an even number of seats, so that all decisions are independent of the vote of any one justice. This also would enshrine the dictum that great changes should not be made by narrow majorities. This could undo the McConnell Theft of a seat in 2016.
2
I knew the Supreme Court had become another partisan branch of government after Bush v. Gore, when conservative members of the Court decided to interfere in our elections on behalf on Republicans. Shortly following this decision, while attending a retirement party for a Court official, three conservative Justices were joking about their coup de grace, as if they had just placed a successful bet in a winning football team. Sandra Day O’Connor later even publicly acknowledged she voted on behalf of Bush not for some legal reason, but because she was eager to retire and wanted her successor to be appointed by Bush. I presume she did not expect such far-right, extreme activism, but in my view, that’s her legacy.
So let’s get over this fiction we keep telling ourselves that the Supreme Court acts as a check and balance in the American experiment. I also think it’s foolish to keep countering Republican extremism and malfeasance with the Democratic version of turning the other cheek. Moderation gets us what we have now— an adjunct branch of the Republican Party, except they are unelected and permanently hold their seats. Now that’s a true undemocratic institution.
8
From the days of John Marshall, the court has been political. It always will be. The law itself is political. The question is whether the courts should be used to, under the pretense of "the rule of law", be entitled to reach conclusions that are opposed to those of the elected majority. We can all feel differently about the wisdom of this, but let's not decry the political nature of the court.
Abstract notions of law should be left to the platonic realm. They don't exist in reality.
2
@nancy zurowski, we should focus first on doing away with the archaic Electoral College. It has long outlived it's purpose of ensuring low population states a voice.
Next, let's do something about putting the SCOTUS in it's rightful place so it can't legislate from the bench.
What does "during good behaviour" look like for a supreme court justice? Could it include neglect of duty of office, through arbitrary decisions/opinions, that do not comport with rationality? Since the constitution constrains justices of that court to "good behaviour", one wonders what that means?
I totally agree that the Supreme Court justices are way too partisan. The cases they have to review are by definition 'on the fence' constitutionally. So one would expect a lot of 5-4 decisions. But we should not always see the same 5 on one side, and the same 4 on the other side.
3
The denial of Obama's court nominee will go down in history as a particularly venal political process transgression. If the Republic comes apart, that event will be pointed to as one of the reasons.
7
@Dale M The Senate has refused to consider SC nominees in a Presidential election year before. The Republic survived.
https://quiznox.com/2017/01/31/election-year-supreme-court-nominations/
"As the table shows, Edward Bradford and Reuben Walworth are strict matches for Garland’s scenario: they were nominated in election years, and the Senate refused to take any action on their nominations. "
If there are to be changes, a moderate (Independent) Justice should be the 9th Justice on the Court.
An all but predictable 5-4 Court is dangerous yet a 6-3 Court IS unconstitutional.
@Coffee Bean There is actually no constitutionally required makeup of the Supreme Court. No where does the constitution specify that the court should be made up of x percent of liberals and x percent of conservatives.
4
@John
Obviously! Yet such a dramatic shift in the court c/would bring about societal unrest far greater than what was experienced in the civil war.
Where is the organized outrage from the majority of US lawyers about the current state of our Supreme Court? Their silence is very puzzling.
5
The downfall of the court began with bush v gore, and has steadily trended downward. This is thanks in part to right wing senators who push for the most right wing justices possible. The current right wing justices, including roberts, appear to care more about winning than the country or the court.
13
@libdemtex You say this as if it’s something horrible (it is), but don’t forget that Republicans are pleased as punch that they dominate every branch of government, as well as the majority of states. They’re thrilled that they’ve placed far right extremists in the Supreme Court, and are looking forward no doubt to RBG’s death or retirement. Republicans like to win, often at any cost, including with help from an adversary like Putin. It is the party of CEO’s, and as long as they can get away with things, they will. Until Democrats, including decent, naive men like Obama, appreciate that Republicans simply don’t care how they win, then we might begin to take back our country— just not in our generation.
@libdemtex RGB refuses to retire based on political ideology.
Congress needs to expand on the advise and consent provision of the Constitution to ensure that all Supreme Court nominees are moderates, acceptable to Democrats and Republicans alike. I have no idea how to make this happen but happen it must if we are to preserve the legitimacy of the supreme court.
3
I read many comments bemoaning the treatment of Merrick Garland.
It is worth remembering that this was originally a Democratic Party strategy. Here is Joe Biden declaring that the Democrats should block any Bush I late term appointee:
https://www.nytimes.com/2016/02/23/us/politics/joe-biden-argued-for-dela...
And then, 15 years later (2007), Chuck Schumer urged Democrats to do the same thing to any Bush II late term appointee:
https://www.cnn.com/videos/us/2016/02/16/chuck-schumer-supreme-court-nom...
The Democrats didn’t get a chance to apply the Biden rule (no late term vacancies opened up). But the Republicans did steal their playbook.
Given the high level of sanctimony, it seems useful to point out the facts.
6
@JG 'Tis a fact that both Biden and Schumer talked about this option. 'Tis also a fact that multiple U.S. presidents, diplomats and members of Congress have talked innumerable times about the deployment of nuclear weapons, as a rhetorical means of deterrence. Equating in any way, shape or form the rhetorical discussion of a particular action with the actual deployment of said action is pure sophistry.
7
@Hal
Deterrence, as in they hoped Bush I or Bush II would be bluffed out of making a late term appointment if given the chance?
No, just like nuclear deterrence, it only works if the other side believes you.
The Democratics created and drew the weapon first, only to have it turned on them.
Blind partisans may not see the poetic justice, but it is there.
Worth remembering that the Constitution is the Constitution and we have a formal and exhaustive (by design) process for changing it, which is not through a 5-4 vote by any Supreme Court, much as the 5 might wish.
1
Most important piece I have read in the NYTimes in my lifetime. Thank you Mr. Leonhardt.
5