There are those who say the Supreme Court is a partisan institution. They are correct. It always has been. I mean, look at Marbury v Madison: An outgoing Federalist administration appoints a bunch of judges in its last days; the new administration nullifies the incomplete appointments; a Federalist Supreme Court issues a ruling in favor of a Federalist plaintiff, but to ensure its own survival declares part of the act which created it unconstitutional, nullifying its own decision. That was a heck of a political maneuver, informed by partisan politics.
Roger Taney’s court certainly wasn’t nonpartisan. I mean, the Dred Scott decision is all about understanding the Constitution as it was originally written—by and for the benefit of wealthy men, especially slaveowners. The various courts of the Lochner Era all worked hard to defend the interests of the then-dominant Republican Party and its sponsors. Minimum-wage laws and child-labor bans were struck down based on the concept of “liberty of contract”, as if prospective employees could negotiate on equal terms with prospective employers.
Only Franklin Roosevelt’s political threat of court-packing got the Court to reconsider its positions. Clearly an institution which is appointed by partisan politicians and which is susceptible to partisan political pressure is going to be a partisan institution. Furthermore, when one party concentrates on the capture of an institution, it’s a partisan institution.
In 1982, conservative law students from Yale, Harvard, and the University of Chicago founded the Federalist Society. The Society is well-funded by white male billionaires, and its members generally promote “originalism” (the conceit that since the Constitution was written by rich white men, it can only be interpreted to benefit rich white men). Because of its excellent network of chapters and its success at getting its members appointed to state and federal courts, it has evolved into the career gateway for conservative lawyers—as long as those lawyers toe the Federalist Society line.
A lawyer groomed through the Society ends up espousing pretty much the same ideology as any other Society lawyer. Over the last forty years, these near-human vat-grown clones have infiltrated the federal judiciary, making many of its courts—including the Supreme Court—hyper-partisan, and overtly hostile to democracy.
These clones are animated by a determination to keep the American people under the control of their betters. That is why Society judges have ruled to enable virtually unrestricted legal bribery in the form of campaign donations; to okay racial gerrymanders as long as they’re disguised as partisan gerrymanders; to approve arbitrary restrictions on voting that disproportionately impact the poor and nonwhites.
So, what do? One proposal is to legislatively limit the issues on which federal courts can rule, or limit appeals. When it comes to issues like civil rights, this might be tricky to implement. If one can only appeal a case to a circuit court or a district court, it opens a path to a patchwork system of rights, where what is a right in one district, state, or region is a privilege in another—essentially a new Reconstruction, in which some states can and will oppress their citizens.
Term limits for judges is another option, with a judge at the end of their term rotated out to an advisory position, or perhaps to another court. This could work, or it could be more trouble: We have already seen at the state level that term limitations for legislators and other officials often leads people to treat their term-limited positions as auditions for higher office or private employment.
What is needed right away is a response to the Federalist clones already corrupting the judiciary. For that, the only solution is judicial reform that includes the creation of additional seats and/or courts. A commonly expressed concern is that, once Democrats start doing it, Republicans will pack the courts once they control the White House and Congress. However, they have already been doing this. Republican obstruction in the Senate left a large number of judicial vacancies at the end of Obama’s time in office, which effectively shrank the sizes of the affected courts. Once Trump was in place, judicial nominations sailed through the Senate, effectively expanding the courts again.
Of course, this is all academic right now. There will be no judicial reform unless the Democratic majorities in Congress are expanded in 2022 and/or 2024. That will be challenging (white supremacy is very popular with American voters) but not impossible (the Trumpist brand of white supremacy is very unpopular). But I think it worth reminding folks that the judiciary matters, and that a lawless judiciary will disenfranchise the people—and worse.
After Gallup’s poll showing that Chief Justice John Roberts enjoys bipartisan approval, it’s important to remind folks that he is part of the Republican effort to disenfranchise and disempower Americans. Roberts took life-saving health insurance away from people because he is a loyal Republican who wanted to deny the Obama Administration a political victory. So when we encourage people in our communities to vote, remind them that their rights depend on it, and they should vote as though lives were at stake. Because they are.