The current court — whose conservative supermajority was manufactured over the past several years in a series of power grabs by Senator Mitch McConnell and his Republican caucus — is now the most right-wing it has been in a century, even as the country as a whole has moved left. Judge Jackson can’t arrest that hard right turn alone, but when she finds herself in dissent, she can speak out loud and clear, not only to her fellow justices but also to the American people, in order to help them understand how far out of sync the court is with the country. Dissents don’t make law, but they can point the way to a better future, as Justice John Marshall Harlan did with his powerful solo dissent from one of the court’s most egregious rulings, Plessy v. Ferguson, in 1896.
The Supreme Court is in a precarious situation more than a century later. Gallup reports that only 40% of Americans approve of the court’s work. Justice Breyer has been sensitive to the dangers of a politically-oriented court for a long time and went to great lengths trying to persuade Americans not to view the Supreme Court as partisan. He demanded that justices forget about politics when they don their robes.
True independence of the judiciary is not easy to achieve but it is essential. Alexander Hamilton noted that the courts do not have the power to control the purse or the sword. Their ability to issue life-altering rulings derives entirely from the public’s acceptance of their legitimacy. This acceptance is dependent on the belief that the courts do their best to be fair and impartial despite the political and partisanship. The moment people stop believing this, the courts’ legitimacy is destroyed.
The American government and society will be severely affected by the collapse of confidence in the high court. This is the only Supreme Court that we have. What can be done?
The first step is personnel: appointing justices who will interpret the Constitution as a document that can adapt to changing circumstances and that embodies the nation’s highest and most enduring ideals. At the moment, justices like these are rare. But, the power to dissent is real. It can lay the foundation for future American courts and the American people.
One reform that could be made in the near future is to apply the same code for ethical conduct to justices as to all lower federal court judges. This would prohibit the kinds of political activities that can give the appearance of bias. Recent revelations about the political activism of Justice Clarence Thomas’s wife put that issue front and center. But it is relatively small potatoes in the larger picture of the court’s role in American life and politics.
The hard reforms will have the greatest impact. Term limits are the most obvious reform to be considered. They have been supported by both conservatives as well as liberals. Steven Calabresi, a co-founder of the Federalist Society, wrote in The Times that lifetime appointments created a “self-perpetuating oligarchy” and that carefully timed retirements only contributed to the public perception of justices as political actors. The strongest proposal would be to give every president at most two or four appointments. Although there are possible ways to accomplish this without amending our Constitution, it would be difficult.
Source: NY Times
