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The Call for Supreme Court Reform

photograph of Supreme Court building facade

Representative Alexandria Ocasio-Cortez has called for reforms to the Supreme Court of the United States (SCOTUS), specifically increasing the number of justices. The reforms are needed, she says, because of the rightward tilt of decisions over the past year including Dobbs v. Jackson Women’s Health Organization (abortion) and 303 Creative LLC v. Elenis (public accommodations and discrimination). On CNN she claimed that if reforms do not occur, then SCOTUS will function “without any check on their power, without any balance on their power, then we will start to see an undemocratic and, frankly, dangerous authoritarian expansion of power in the Supreme Court.” The opinion pages of major journalistic outlets like The Washington Post include similar views decrying judicial behavior.

To assess the need for reform and effectiveness of potential solutions, we must first determine what it would mean to have a properly functioning judicial system. One way to evaluate our social and political institutions is through John Rawls’s constructivist lens presented in his seminal work A Theory of Justice (and elsewhere). Rather than starting with a specific (and contentious) ideal, we tie our conception of proper functioning to the product of particular processes. As Carla Bagnoli describes it, constructivism is a view that “insofar as there are normative truths, they are not fixed by normative facts that are independent of what rational agents would agree to under some specified conditions of choice.”

To make sense of this description I like to think about where constructivism fits into a picture of objectivity and subjectivity. At one end we have facts — statements such as “the cat is on the mat” — whose correctness is determined by a set of referents independent of any human observer. As long as there is a mat, there is a cat, and the two objects have the right kind of relationship, the statement is either correct or incorrect. This is a realist view in which there are objective truths to be discovered in the world. But moral, political, and legal decisions are different from such prosaic examples. So, some have argued that normative statements are mere matters of opinion, lack truth value, and may be little more than non-cognitive expressions of emotion like “SCOTUS decision — Boo!” or “SCOTUS decision — Huzzah!” In other words, there is no objective truth whatsoever to Rep. Ocasio-Cortez’s evaluative claim that SCOTUS is involved in “a dangerous creep toward authoritarianism.”

Constructivists attempt to locate themselves in between realist views and non-cognitivist views. In constructivist views, statements about morality, politics, and the law have independence from individual human beliefs and emotions, and thus they have a claim to being objective. But the truths in these normative domains are not discovered facts, as a realist would claim. The truths are created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game.

What does this have to do with SCOTUS? Rawls makes a distinction between different types of games we can be playing in political arenas. The difference between these games is the nature of the procedures used to identify evaluative truths. One of these games involves imperfect procedures; another game uses pure procedures.

Imperfect procedures start with the assumption that there exists an independent criterion concerning what constitutes a correct answer, but that the practices available to an investigator do not guarantee that the correct answer will be identified. Rawls uses a jury trial as an example. Lawyers use the adversarial method to convince a jury of peers that the accused either is or is not legally guilty. But those who are watching often want a verdict to express not legal guilt but something more — namely did the accused actually act in a way that warrants a conviction or acquittal. As Rawls puts it, in a jury trial using the adversarial method, “[e]ven though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome.” The existence of the appeals procedure, and the work of organizations like The Innocence Project, suggests that the adversarial method does not guarantee the correct answers.

Alternatively, the major difference with a pure procedure is that a pure procedure does not assume the existence of an independent reality and criterion for what constitutes a correct answer. Instead, the procedure itself, when run, constructs the correct answer. An example of such procedures is a bracket procedure used in professional tennis tournaments. There is no answer to the question “who is the best women’s player at Wimbledon in 2023?” until the tournament is finished. Iga Swiatek may have been ranked number one in the world and the number-one seed at Wimbledon, but before the tournament finished, there was no answer to the question. Now that the tournament is over, we can answer the question: Markéta Vondroušová is the best women’s player at Wimbledon in 2023, despite being unseeded at the beginning of the tournament.

If we want to know whether SCOTUS or the other federal courts are functioning properly or in need of reform, we need to determine what type of procedure governs the practices of the courts and see whether SCOTUS is behaving in accordance with these conceptions. Begin with the following question: Is SCOTUS supposed to be operating in a manner consistent with imperfect procedural justice?

At first glance, that seems to be the case. Decisions made by SCOTUS are supposedly constrained by several independent criteria. First, the content of the U.S. Constitution, especially the Bill of Rights, is supposed to be an independent constraint on their rulings. SCOTUS can’t ignore issues of due process. SCOTUS and the legislative bodies have the ability to shape the nature of due process, but the Fifth Amendment requires that certain rules are followed. Next is the concept of standing which requires a plaintiff to have an interest that is violated, an “injury-in-fact.” This keeps the court from making decisions based on hypothetical cases of legal injury. There is also the concept of stare decisis, the idea that courts should honor precedent to create a predictable and consistent legal system (see here).

A Supreme Court justice that had this many constraints and attended to them should, as Chief Justice John Roberts stated in his confirmation hearing, see their “job as to call balls and strikes.” In other words, the role of a justice is to look at the facts of a case and consider the independent constraints of precedent, statutory laws, and constitutional laws, and merely make a judgment about the truth in the case.

Has SCOTUS lived within these constraints? Some have argued that the Plaintiff Lorie Smith did not have standing in 303 Creative LLC because a) no one asked her to make a website for a wedding between two people of the same sex, and b) no state agency invoked the Colorado Anti-Discrimination Act in legal action against her. She suffered no injury-in-fact. Further, given that Dobbs overturned an almost 50-year-old precedent in Roe v. Wade and SCOTUS overturned decades of precedent in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, there is reason to believe that the court is not abiding by stare decisis. Admittedly, stare decisis is not an absolute constraint, otherwise the ruling of Brown v. Board of Education would also be problematic. However, given the current willingness to claim that a previous case was wrongly decided despite being upheld by other decisions suggests it is currently no constraint at all.

Next, consider that Marbury v. Madison reinforced the concept of judicial review – the Court can invalidate laws and statutes considered inconsistent with the Constitution. Judicial review is effectively the power to interpret the prevailing legal institutions, especially the Constitution, to justify decisions. So, it is not simply the Constitution, but a justice’s interpretation of that document, that is operative in justifying SCOTUS decisions. Ultimately, a justice issues guidance as to the correct answer according to how their particular interpretive lens (originalism, contextualism, legal pragmatism, etc.) makes sense of the facts of the case. But that means the Constitution is not, by itself, an independent constraint on judicial decisions either.

In short, it is not clear that there are constraints on SCOTUS, so it looks like we should not see it as using imperfect procedures.

Does SCOTUS instead operate according to a pure procedure? It might seem so since we don’t really know the correct answer to a legal question until SCOTUS rules. The process of appealing a lower-court decision, SCOTUS hearing the case, and making a decision settles the matter. Pure. Procedure. So, on this view, SCOTUS in Dobbs, 303 Creative, etc., is functioning as it should, and the basis for criticizing the Roberts Court as radical, activist, illegitimate is questionable, as is the call for reform.

But it is important to note that SCOTUS is not like Wimbledon. Tennis tournaments have rules that are drawn up by one group of people, while another group of people act as judges during matches. The procedure — the bracket — then develops based on the actions of the players as overseen by the judges. This is decidedly different from how the Supreme Court currently operates. Between choosing judicial interpretive lens, interpreting the rules of standing, determining whether stare decisis should be honored, SCOTUS is fundamentally not like these sports tournaments. When a case comes before SCOTUS, the justices can act as both the umpires and the rules committee. They make choices about the relevant rules and their application after the legal competition has begun. In sports, all of these decisions are made and publicized prior to the first match. So, in very important ways, SCOTUS operates in a way that is not even consistent with a paradigm example of a pure procedure. In other words, these are not decisions created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game. They are also constructed by those who are changing the rules as the game proceeds.

If we accept the above, then recent decisions show the Court is functioning as designed, but perhaps not functioning as we want. The decisions are not discovered by an imperfect procedure; they are not created by a pure procedure. Instead, they are the result of something else, such as expression of political power. So, what can be done? When evaluating institutions, Rawls would have us ask “is this how a group of rational individuals, unaware of their own biases or even personal characteristics, would design the rules of a judicial system?” If the answer is “No! This is not the design we want,” will increasing the number of judges fix the problem?  Unfortunately, increasing the number of justices, as Ocasio-Cortez suggests, will not make the court function properly — it will simply shift the balance of power. Instead, what is needed are enforceable constraints on the decisions of justices so that SCOTUS operates more like a sporting event and less like a pure exercise of political power.

 

The author would like to acknowledge the help of his colleague Dr. Dominic DeBrincat, Professor of History.

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Leaders Behaving Badly: Executive Overreach and Dangers to Democracy

photograph of Donald Trump and Scott Morrison at White House press conference

In the same week that Donald Trump was being pilloried for taking classified documents from the White House, Australia was facing its own crisis of executive overreach. Reports surfaced that our former Prime Minister, Scott Morrison, had ignored the unwritten rules of Australian democracy and given himself responsibility for a variety of government portfolios, extending his power way beyond his remit. This extraordinary concentration of power in the hands of one man represented a significant threat to our venerable system of government. It also raises an interesting question about the nature of democracy: what is the best way to ensure that the voices of the population are represented in the halls of power?

What’s so great about democracy?

There are a couple of normative benefits to democracies over alternative forms of government. One is that executive power is limited, saving us from the sort of governmental overreach which characterizes totalitarian regimes. As political philosopher George Kateb wrote, “in contrast to dictatorship, oligarchy, actual monarchy or chieftainship, or other forms [of government], representative democracy signifies a radical chastening of political authority.” Both presidential and parliamentary democratic systems achieve this chastening by dividing powers between branches of government and providing checks and balances on executive authority. (That said, American presidents tend to have far more individual power than Australian prime ministers – despite the separation of powers in the U.S., executive orders are incredibly common).

For this chastening to be successful, however, strong constitutional or legal protections must be in place to ensure that power doesn’t become overly concentrated.

As we’ll return to in a moment, Australia’s reliance on unwritten laws, precedent, and tradition means that we are at risk of unscrupulous actors accumulating excessive power and wielding unfettered political authority.

Another positive of representative democracy is right there in the name – it is representative. Parliament, or congress, is made up of people from across the nation, and is supposed to represent the interests of those people; allowing them a say in, and control over, the laws and institutions that determine their lives. Australian philosopher Elaine Thompson equated representation with fairness: democratic systems are representative only insofar as “the parliament is accepted [by the people] as representing the people who elected it.”

The Australian parliamentary system

Before diving into issues of representation, it’s worth giving some background on Australian governance. There are quite a few differences between the Australian and American political systems but the major one is that, in Australia, we don’t directly elect our leader. Both Australians and Americans vote for local representatives and for senators to represent their states.

But whereas every American has the opportunity to vote for their president (ignoring the vagaries of the electoral college), Australia’s prime minister is chosen by the aforementioned local representatives.

Currently, the Labor party holds a majority in the House of Representatives and have elected one of their own, Anthony Albanese, to the Office of Prime Minister. But if one party doesn’t hold a majority in their own right, parties must work together to form governing coalitions. Once a prime minister is elected, they select a ministry of members of parliament who are given responsibility for different portfolios – things like health, education, trade, foreign affairs, and so on. The minister is then supposed to wield authority over their area, meaning they make the big decisions on policy matters and (occasionally) take responsibility when things go wrong.

So, the Australian flavor of representative democracy is quite different to the American one. But if representation is the goal, what offers better representation – parliamentary or presidential systems?

President or Parliament?

On the one hand, American presidents are directly elected by the whole nation, which might make them more representative than Australian prime ministers. Presidential candidates can’t afford to only appeal to small minorities or particular geographical areas: they have to garner support across the country. Theoretically, at least, this should temper their wilder inclinations as they attempt to cast as broad a net as possible (although empirical evidence might suggest otherwise). On the other hand, it might be unreasonable to think that anybody could truly reflect the diversity of a huge country like the U.S.

Unlike presidential candidates, local representatives can (and perhaps should) pander only to their narrow constituencies. This means they can take up local matters or focus on representing minority groups, although that narrow focus can mean they are less representative of the nation as a whole.

In Australia’s system, the issue of representative leadership is somewhat offset by the existence of parliament: although any one member might not be particularly representative of the entire nation, the parliament as a whole – all 151 members of the house, plus the senate – ought to offer a decent reflection of the nation. And because decision-making isn’t centralized in the prime minister, it’s not such a huge issue that they are only elected to parliament by a small proportion of the population. By spreading decision-making responsibility across members of parliament, representing different people from different places, we avoid the need to have any single, broadly representative, head of state or government.[i] Lately, however, this hasn’t been happening.

The secret ministries

Last week, news surfaced that during the pandemic (now former) Prime Minister Scott Morrison secretly swore himself in to five different ministries: Home Affairs; Finance; Health; Industry, Science, Energy and Resources; and Treasury. So rather than having responsibility for policy decisions spread across members of parliament, we had an unprecedented concentration of power in Australia – something closer to the American presidential system than the system we are used to.

What’s worse, we didn’t get any of the benefits of the presidential system.

Instead of having a president elected by the entire country and entrusted with heading government, we had a prime minister with a huge amount of centralized power elected by a small group of people from south-east Sydney – an area richer, whiter, and more religious than Australia as a whole.

Essentially, we had the worst of both systems: an unrepresentative leader with too much individual power. Thompson’s fairness was nowhere to be seen, and the chastening of power that Kateb wrote about had been eroded from within.

Despite public outrage and condemnation of Morrison’s actions (including from those in his own party), they were perfectly legal – even if they “fundamentally undermined” the practice of responsible government. Luckily, Morrison did little with his extreme power, other than cancel a permit for a gas project off the coast of Sydney. Next time, however, we might not be so fortunate. What the Morrison saga shows us is that regardless of whether we live in a presidential or parliamentary system, we can’t rely on convention, tradition, and unwritten rules. Strong laws limiting individual power are essential to the creation of democracies which truly represent the will of the people.

 

 

[i]  (For an excellent overview of the strengths and weaknesses of parliamentary and presidential systems, check out political scientist Steffen Ganghof’s recent book).

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A Pause on Rights: Canada’s Constitutional Clause

photograph of interior of Canada's House of Commons

Imagine a world where overturning Citizens United could be done with a simple act of Congress. According to polls, 88% of Americans hailing from both sides of the aisle would back a constitutional amendment to overturn the decision. But why does it take a constitutional amendment? Because the U.S. Supreme Court ruled that political donations constitute free speech, and because corporations have a constitutionally protected right to free speech, including unlimited donations. Since changing the U.S. Constitution is exceedingly difficult, this is not likely. But what if Congress could simply override the Supreme Court and say that there are limits to such forms of free speech. Canada has such a mechanism in its constitution, and it is starting to raise serious ethical concerns.

All rights in Canada enshrined in the Charter of Rights and Freedoms are already subject to “reasonable limits,” an ambiguous phrase whose meaning must often be determined by courts. However, under section 33 of the Charter, the federal Parliament of Canada or a provincial legislature can declare that a piece of legislation will operate notwithstanding the Charter. So, if a court rules that a law violates the Charter, a legislature with a simple majority can say that the law will remain in force for up to five years before the legislature must revisit the question and potentially renew the exception. In essence, it can put individual rights on pause for half a decade at a time. The clause doesn’t apply to democratic rights or mobility rights, but legal rights concerning detention, trials, punishment, and fundamental freedoms like freedom of association, peaceful assembly, and free speech are all fair game.

The clause has been called “uniquely Canadian,” and would no doubt be controversial in the United States. It could be used to limit political donations or enact stronger gun control legislation, but it would also be easy to limit protest or engage in practices that might be considered cruel and unusual. Created as part of a constitutional bargain to appease the provinces, the clause has almost never been used and has always been controversial. The Charter is highly prized by Canadians, and so the idea of overriding it is typically politically perilous. Nevertheless, in the last three years there have been about as many threats to use it as there were during the first eighteen years of its existence or the eighteen years after that.

The latest controversy involves Premier Doug Ford of Ontario who has threatened to invoke the clause in response to the courts striking down election finance legislation that the Ford government had passed, limiting third-party advertising for a period of one full year from an election (prior to this, the law restricted spending six months before the election). Typically, these third parties are supported by public sector unions which tend not to support Ontario Conservatives, so the move to use the clause in this case, described as using a “sledgehammer on a gnat,” appears even more controversial as it seems to politically benefit Ford. (Ford had previously threatened to use the clause in 2018 after his government unilaterally changed election laws in Toronto during an election.)

In other provinces since 2018, the threat of invoking or actually invoking the clause has been a response to issues relating to public funding for Catholic schools, legislation requiring vaccination, the use of religious symbols in the civil service, and, recently, protecting the French language in Quebec at the expense of minorities in the province. This increasing willingness to use the clause, and use it more frivolously to pre-empt a court decision before it is even made, is a cause for concern. As Justin Trudeau’s former secretary puts it, “what’s at stake here is whether the ultimate arbiter of your Charter of Rights and Freedoms is the Supreme Court of Canada or your provincial premier.” But “don’t democratic societies put minority rights into inviolate foundational documents precisely because they’re politically tempting to violate?”

Indeed, Canada has recently seen exactly what can happen when the rights of minorities are ignored for the sake of a political majority, and there are plenty of other historical examples in Canada where rights have been violated. So obviously, there are ethical concerns about the clause. So why keep it? Originally, it was thought that the clause would only be used in non-controversial circumstances because it would be so unpopular to use it otherwise. However, for those who support the clause, there are two important factors to consider. The first is that the clause is considered to be an important check on judicial review.

While the Canadian Supreme Court does not have the same partisan tinge that it’s U.S. counterpart has, in the Canadian legal framework, Parliament is supposed to be supreme, meaning that what it says goes rather than the rulings of unelected judges. Some who support the clause argue that it is ultimately one of the reasons the court is less partisan; judges will be less activist and partisan if they know they can be so easily overridden. Indeed, with such a clause in the U.S., there might be less concern about when certain justices retire. Another reason why the clause is supported goes back to part of the reason it was created: to allow provinces to opt out for the sake of balancing collective rights.

Quebec has used the clause the most, typically defending its usage by claiming it is needed to protect the French language. Long concerned about declining usage of French and eventually becoming assimilated into English Canada, Quebec’s defenders seek to protect collective French community rights over individual rights to secure what Quebecers consider to be a distinct society in North America. Thus, they claim that the clause serves a vital moral good.

On the other hand, critics might charge that this simply amounts to securing the rights of the majority over the minority by bypassing individual rights. Indeed, imagine any state simply choosing to ignore Roe v. Wade simply because it would be a popular move to do so. To that extent, the clause has raised new issues of moral concern as provinces now seem more willing to use it, even for things other than “non-controversial issues.” The concern now is that the more it is used, the more it will be overused for the sake of convenience and political gain rather than as a last resort.

The moral issue for Canadians reconsidering the clause after almost forty years of existence is: How should collective and individual rights be balanced relative to each other? And how might these calculations change when a government threatens to use it? Experts believe that a move like Doug Ford’s will be unpopular because it carries a lot of political baggage. On the other hand, Canadians are famously apathetic about politics and rarely turf one-term governments. It remains to be seen whether Canadians will be keen to defend the Charter from clause users come election time. I’d be skeptical that Ford’s use of the clause becomes a major election issue a year from now. But the moral danger is that a constitutional tool capable of doing something so potentially harmful slowly shifts from a taboo to a norm fueled by populism. The moral task for the public is to re-evaluate how comfortable we are with this and under what conditions we consider the clause’s use acceptable.

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Justice Breyer and Strategic Retirement

photograph of a contemplative Justice Breyer at a speaking engagement

Though President Biden’s election win is still fresh, many political strategists and advocates are already thinking about the 2024 election. Amid the various areas of concern, the increasing conservatism of the Supreme Court has become a central focus for Democrats. Serious consideration of expanding the Supreme Court is becoming increasingly unlikely. In its place, a wave of calls for Justice Breyer’s resignation has followed. Calls for Supreme Court justices to retire are not new, but the fervor in these renewed calls is considerably more intense. These voices raise significant ethical issues surrounding the Supreme Court and the political duties of its justices.

Are calls for Justice Breyer to retire ethical? Is age a sufficient reason to call for one to step down? Should political concerns influence the actions of Supreme Court justices?

Calls for Justice Breyer’s retirement are often directed as appeals to Breyer’s ethos. His refusal to retire has been labeled as out of touch, supremely consequential, and essential to safeguarding his legacy. Many of these appeals have the appearance of being ageist, motivated by prejudice about his getting on in his years. Justice Breyer is the oldest sitting member of the Court. At 82 years old, Breyer has technically passed the average life-expectancy of an adult male in the United States. Older people already face significant discrimination in society, and the force of that stigma should be considered in calling for Breyer’s resignation. Ageism is especially prevalent in the workforce. Calling for Breyer to retire due to his age arguably perpetuates the notion that older people have little left to contribute.

It is likely, however, that the calls to retire are also born out of the idea that Justice Breyer has served his time. In fact, he has served for nearly a decade more than the average tenure of a Supreme Court justice. Supporters of his retirement might also point out that the majority of appointed Supreme Court justices in history have opted to retire. Though appointments are technically for a lifetime, 57 out of the 108 Justices left office voluntarily. With these facts in mind, calls for Breyer’s retirement arguably reflect Supreme Court norms.

Defenders of Justice Breyer, however, point to the inconsistency of his critics. It’s hard to ignore the blatant difference in treatment which Breyer is receiving compared to his predecessors or even current fellow justices. Justice Ginsberg passed in the last few months of the Trump administration, leading to the appointment of Justice Coney Barret, who was highly unpopular with Democrats and especially pro-choice advocates. Justice Ginsberg had a history of health complications, yet was applauded for continuing to serve on the bench. In comparison, Justice Breyer has far fewer physical health complications, but has been subject to a plethora of scrutiny for continuing to serve. Perhaps this clear difference in treatment is a result of Ginsburg’s celebrity-like popularity in American culture, or even her perceived status as a liberal icon. It is also possible that the increased scrutiny directed at Breyer is a direct result of Ginsburg’s death and its aftermath. Democrats are fully aware of Republicans’ ideal Supreme Court candidates, Trump’s appointments shifted the balance of the Court decisively. Perhaps, then, calls for Breyer to retire are a direct response to this political reality, making for an unfair comparison between the treatment of Justice Breyer and Justice Ginsberg.

This suggests that many of the calls for Breyer to retire are motivated not by discrimination regarding his ability to do his job adequately, but rather out of concern that his seat might need to be filled at a politically inconvenient time. If not for fear of a potential future Republican-appointed justice, there likely would not be any scrutiny aimed at Justice Breyer. As such, calls for Justice Breyer’s retirement are premised on the assumption that the Supreme Court is a political institution (for discussion, see Tucker Sechrest’s “Politicians in Robes”).

The politicization of the Supreme Court has been a topic in legal scholarship for decades. Critics of this phenomenon argue that using the Court as a political scoresheet undermines the public’s faith in the legal institution of the country to be fair and even-handed. One might also argue that the very structure of our government, which prioritizes the balance of powers, indicates that the Supreme Court was meant to be an institution far removed from politicking. Indeed, the Court has historically handed down politically disfavored decisions which had enormous effects on American society, for better or worse.

Despite the fervent calls for his retirement, Justice Breyer has made it clear that he will not step down. Unlike his critics, Breyer believes that political compromise is still possible and should be pursued by the very Democrats who criticize him. Whether this is virtue or folly, his critics would do well to consider what ultimately motivates their impatience and where it might lead.

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“Politicians in Robes”: Neutrality in the Supreme Court

photograph of judge in robes

As the Supreme Court decides which issues to take up on its docket — abortion, gun rights, and perhaps even affirmative action — legal seers are already tallying the expected results. Emphasizing the court’s 6-3 conservative majority, many see these cases as having all but been decided; the writing is on the wall.

The political leanings of the Roberts Court have only grown more visible. While an air of secrecy often attends the justices’ business and keeps the inner workings of the Court hidden from public view, any sense that the Court stands removed from the political fray is quickly disappearing. Justices Kagan and Sotomayor have increasingly called out Kavanaugh’s inconsistent rulings, and he’s been taken to task for his hollow virtue-signalling and performative hand-wringing. This isn’t like when Justice Alito sparred with Gorsuch over his textualist read of Bostock. In Kagan’s dissent in Edwards v. Vannoy just last week, she explicitly chastised Kavanaugh for his approach that “treats judging like scorekeeping … about how much our decisions, or the aggregate of them, benefit a particular kind of party.” This, Kagan argues, is simply not how judges are supposed to approach their duties. Judging requires focusing on the legal merits of the case before you; it isn’t about anticipating political fallout according to party affiliation or balancing “wins” and “losses.”

The divisiveness seen in the Court mirrors the ugly politics in Congress that preceded its recent newcomers. All three justices, Ian Millhiser points out, were “nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country.” Given the hypocrisy surrounding Gorsuch and Barrett’s appointments as well as the acrimony on both sides over Kavanaugh’s confirmation, it will be hard to dispel the notion that the Supreme Court is just another battleground for political score-settling.

Add to this a common belief in the practice of strategic retirement – justices timing their departure to ensure the installation of like-minded predecessors – and it’s hard to see the Court as anything other than an ideological land grab. The lottery appointment system, ensuring that justices are confirmed unevenly, erodes public trust and stretches the connection between the people’s will and their rulers’ authority to its breaking point.

Taken together, these considerations question the Court’s ability to serve its necessary function as a check on power and legal backstop. Contrary to Justice Roberts’s claim that the Court’s job is merely to “call balls and strikes,” the prevailing perception is that justices are overwhelmingly motivated by their personal political agendas and, thus, the Roberts Court stands committed to effecting the Right’s political will.

So what do we stand to gain by maintaining the fiction that justices are nothing more than umpires? Why deny the Court is composed of “Obama judges or Trump judges, Bush judges or Clinton judges”?

However well these cynical accounts reflect the reality, it does great and lasting damage to our legal system to reduce the High Court to just “another political institution” — a nine-member Congress replete with the familiar political hackery and partisan warfare. That damage can’t be undone by simply expanding the bench to instill balance and force it to better reflect citizens’ diverse viewpoints. Any politics-driven reform to the Court threatens to undermine whatever is left of the public’s trust in the institution. The Court’s role as guardian of individual rights, ultimate interpreter of the Constitution, and final arbiter of the law is very much at stake. Ultimately, the Court’s decisions confer legitimacy only insofar as we believe in its singular ability to apply the law in neutral fashion, according to a standard we (perhaps naively) think insulated from political ideology.

These convictions have led Justice Breyer to claim that the “peril facing the Supreme Court comes less from partisan judges than from citizens who, encouraged by politicians, equate impartial justice with agreeable judicial outcomes.” Rather than focusing on results, we should expect judges first and foremost to follow the law. Public trust comes from our faith that, in interpreting the law, justices rely on their legal ability and interpretative powers rather than fidelity to a particular political party. We call on the Court to deliver legal pronouncements rooted in a theory of constitutional interpretation rather than barefaced political morality. The Court stands apart from other political institutions because we see its members as possessing a specific kind of expertise and assessing cases according to a unique and independent metric. Judging is about applying neutral legal criteria, not about partisan policy preferences; it’s about divining the meaning of words, the intentions of authors, and the implications of past precedents. It’s an investigation rather than a contest, a deliberation rather than a quarrel, an art rather than a science.

Apart from this prioritizing of procedure over product, we also tend to think that the justice’s lifetime tenure insulates them from political pressure. On the one hand, this makes the justices unaccountable to the people; these unelected officials exercise enormous power over the lives of citizens without fear of recall. On the other hand, this suggests that judges are freed from the rancor of party politics and are beholden to no one (including the person who appointed them).

But what do we do with the incongruity between this idealized fantasy and our political reality? How do we restore (or at least maintain) public trust in the institution? Expanding the bench threatens to burn whatever credibility the Court has left, but staying the course promises death by a thousand cuts. From regular appointments to term limits, perhaps President Biden’s Supreme Court reform commission can show us the path forward, though no one seems to be holding their breath.

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The Day after Election: Democracy and Good Faith

photograph of downtown Washington D.C. with Capitol building in background

Much attention and energy is focused on the outcome of the election, but regardless who wins there is a great deal of work to be done — simply declaring one side the victor won’t solve our problems. So what’s the next question we should be asking after “Who won?”

In a recent podcast discussing the state of the American democracy, David Runciman remarked:

“The optimistic view is that democracy is a resilient and flexible form of politics… but there’s a deeper fear – which is that something has changed, something over these last three and a half years; [that the Trump presidency] has left not just a stain but a kind of permanent imprint on how people think about the institutions the values and the norms [of American democracy].”

America, and the world, will know soon if Trump gets in for a second term. There has been much talk over the past four years about how much damage Donald Trump could do, is doing, and has done to American democracy, and much discussion about the ongoing effects of the stress the Trump presidency has had on the institutions of American democracy.

If Trump loses, it isn’t yet clear how the institutions of American democracy will emerge from the crisis of his presidency. If Trump is returned to office, no one knows what the state of American democracy will be after four more years, but the prognosis would not be good.

When people talk about the ‘institutions of democracy’ they usually mean the balance between legislative and executive power, the checks and balances Congress is supposed to provide, as well as the role of an independent judiciary and a free press. The last four years, compounded by fears that Trump may refuse to concede a lost election, have demonstrated many weaknesses and vulnerabilities in all these areas. But there is another important democratic ‘institution’ rarely mentioned yet vital for a healthy and functional democracy – that of good faith.

When Utah senator Mike Lee said recently that “democracy isn’t the objective” of America’s political system, he confirmed the suspicions of many in appearing to speak out loud the agenda and tactics of the Republican Party. Other Republican figures, including the president, are on record admitting that without voter suppression tactics the Republican party could not retain, or likely ever again attain, the power of the presidency or of Congress.

Good faith means that all sides of politics respect and uphold the central principle of democracy as a system of government formed by and of and for the people. Citizen participation is needed for this. A high degree of trust is needed. For there to be trust in politicians they must be trustworthy. If you trust someone who lies and cheats, that doesn’t make you a trusting person, it makes you gullible. So there has to be the right kind of trust, which is reciprocal and earned and not misplaced.

Good faith, necessary for democracy to function, is derived from the institution itself: from respect for and deference to true democratic principles by those empowered to discharge its duties. Good faith is attached to the principle of fairness, and it is lost when the desire to win at any cost takes hold.

Erosion of good faith between political parties, where there is no recognition of a common good, only the good for one side or another, has been poisoning American democracy since before Trump descended the escalator at Trump Tower to announce his candidacy. So, while it is tempting to think of this election as centrally a test of whether the American democracy can withstand authoritarianism — of whether the world’s oldest and longest surviving democracy can withstand the stress test of Donald Trump — it would be incorrect to think the era of bad faith began with him, even if he is the unsurpassed master of its theatrics.

Much has been made over the last four years about the Republican Party in general, and particular key figures such as Mitch McConnell, as enabling Trump – but Sarah Churchwell makes the point that the failure of McConnell et al to reign Trump in has enabled the ideological right. Trump has been utilized by the Republican Party to pursue its arch-conservative and patently antidemocratic agenda.

Heading into the election Trump has not only helped advance the conservative ideologue’s antidemocratic agenda, but taken it to a whole new level. As Sabeel Rahman (president of the thinktank Demos) says: “A set of actors in the Trump administration and the Republican party have made it very clear that their intention is to hold on to political power at the expense of democratic institutions.” This was spelled out (although incorrectly) by Mike Lee: “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

It has been clear leading into this election that voter suppression and intimidation is the Republican plan for winning the election. Added to this is the widespread fear that Trump won’t concede, and the uncertainty about what will happen next. Judith Butler tells David Runciman: “…I think if Trump is successful in his efforts to contest, litigate, or otherwise cling on to power, then he is there unless the government is able to act and remove him.”  At this stage, as the election looms, we don’t know how such a scenario would play out.

Democracy — and the institutions and democratic norms it relies on — has, at best, always been a slow dance towards a better, more inclusive, more progressive, and more just iteration of a political ideal where the views and interests and of the people are represented through various means of direct and indirect choice. The lack of good faith now at the heart of the system has severely impeded this goal. It seems that all but a few, now-powerless members of the GOP are willing to sacrifice good faith for power – and, whatever happens next week, the American democracy cannot heal without some restoration of those vital democratic institutions of trust and good faith.

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A Call to Vigilance in the Fight for Congressional Ethics

As Donald Trump prepares to assume the Presidency of the United States, many have speculated on whether the candidate will be constrained by the United States’ system of checks and balances. Some, such as Newsweek’s Stacy Hilliard, have assured concerned citizens that U.S. democratic institutions will function as designed, ultimately withstanding any single leader and keeping Trump in line. Writing just days after Trump’s victory, Hilliard argued that Congress would provide the strongest check on the President, noting that, “The legislative branch’s purpose is to be the voice of the people, and it historically does not like being dictated to from the White House.” Though Trump’s policies may be worrying, she argued, Congress would act to filter out the workable from the impractical, discriminatory and unconstitutional, constraining his presidency within the bounds of a long-stable governmental system.

Continue reading “A Call to Vigilance in the Fight for Congressional Ethics”