For those with the time and patience, Lawrence Tribe's excellent essay in the New York Review of Books (https://www.nybooks.com/articles/2023/08/17/constrain-the-court-without-crippling-it-laurence-h-tribe/) provides a historically informed, clear-eyed analysis of the inherently problematic nature of the Supreme Court, its present-day, abysmal corruption by power-drunk right-wing ideologues, and the options for meaningful reform of this key institution. Given the importance of the subject, I recommend Tribe's essay to everyone. But knowing that not everyone is going to follow my recommendation, here's my gloss and takeaway.
We who grew up in the 1950s, 60s, and 70s learned to credit the Supreme Court as our government's ultimate guarantor of individual liberty and rights and as the final protector of oppressed minorities. In many of us, this created a reverence for the Court that has been hard to put aside, obscuring our recognition that the Court's current functioning is historically exceptional only in the depth to which it has sunk. We were misled by circumstances. The Warren Court, which did so much to establish that splendid reputation, was a momentary aberration in the Court's history. It showed what might be achieved by a Supreme Court staffed by conscientious jurists sincerely dedicated to realizing the democratic, egalitarian, and humanitarian aspirations embedded in the Constitution. For most of its history, the Court has consisted of upper-crustpatriarchs largely blind to the interests of anyone but the oligarchic and racially dominant classes from whom they were drawn.
Most non-lawyers do not understand that the Supreme Court's role as final arbiter of the law, universally recognized as its most important function in our system of government, is nowhere mentioned in the Constitution. Nearly all the Constitution has to say about the Supreme Court is that there shall be one. The size, procedures, time and manner of meeting, and most of its jurisdiction are entirely subject to the control of Congress. The Supreme Court's status as a branch of government co-equal to the legislature and the executive rests almost entirely on the 1803 decision Marbury v. Madison, in which the great Chief Justice John Marshall declared the Court's power to review acts of Congress and if necessary to reject them as unconstitutional. Nothing in the Constitution directly supports or compels this result. But Marshall's assumption of power, elevating the Court beyond the role explicitly assigned to it by the Founders, has been almost unquestioningly accepted for two hundred twenty years, because of the foundational political necessity of including this "check and balance" in order to maintain a stable democracy functioning under a rule of law.
Marbury v. Madison made up for a lacuna in the original Constitutional scheme. This lays bare the ultimate irony of the intellectual fraud called "Originalism": that Originalists enthusiastically exercise a power which, on Originalist grounds, properly does not exist. But I digress.
The politically persuasive rationale pronounced by Marshall, two hundred plus years of customary observance, and the fear of instability and ruin that may result from rejecting Marshall's scheme - not any language in the Constitution - are the chief underpinnings and components of what we like to consider the Court's "legitimacy." Until recently, however blinkered and reactionary the Court may have been, it has striven to maintain that legitimacy by adhering to basic attributes of judicial function, such as respect for precedent, scrupulousness with regard to fact, transparency of procedure and reasoning, restriction of jurisdiction to cases in which parties have a direct and immediate interest. Whether or not one agreed with the Court's decisions, at least one could mostly agree that it was acting as a court. This started to unravel in the Rehnquist era. I remember how, as a law student in the late 1970s, I was regularly appalled by the Rehnquist Court's cavalier, dishonest use and disregard of precedent to arrive at clearly predetermined results. Now, with the Roberts-Gorsuch-Kavanaugh-Barrett-Alito-Thomas cabal firmly in charge, there can be no serious doubt that the Court has abandoned in practice any effort to function as a court when its ideological interests are implicated. Instead, it abandons established precedent willy-nilly, manufactures controversies to suit its policy predilections, hides behind obscure and summary procedures, and covers the indecency of its
decisions with only the thinnest of pettifogging veils. In his essay, Tribe persuasively argues that the Court, however bad it may have been in the past, has not previously untethered itself so completely from its only legitimate function, that of being the nation's highest court.
What is to be done? Tribe discusses various proposed reforms. They include tinkering with the Court's jurisdiction,imposing ethical standards on its incumbents, requiring supermajorities for decisions that invalidate congressional enactments, requiring congressional ratification of such
decisions, etc. Tribe thoroughly goes through the pros and cons of each proposed remedy. Most, he finds likely to be ineffective, or excessively risky, or beside the point in our present situation. In the end, he describes the problem as one of an unprincipled majority's arrogance.
Two things seem clear. First, something must be done. Supreme Court seats are awarded for life. Attrition is not likely to erode the present majority for another fifteen or twenty years, and even then, there are plenty of unprincipled right wingers waiting in the wings to replace the perjurers and hacks we've presently got, if a Republican president and Senate are in place to appoint them. We can't just wait for them to die off, in other words. Theyc an do far too much damage in the meantime.
Second, although there are plenty of ways to tweak the Court's procedures and standards, what we have here is basically a personnel issue. For the first time in its history, the Court has been hijacked by a majority uncommitted to the rule of law insofar as that may interfere with their reactionary policy predilections. They can't be removed, and we can't afford to wait to outlive them. The only other option is to neutralize them. At the first opportunity, the Court must be expanded to thirteen members. Slippery Sam Alito may deny it, but that's well within Congress' power.
It's not just a numbers game, of course. The Senate's approach to confirmation of Supreme Court nominees is deeply corrupted. The Republican Party's enlistment in the right wing's culture wars is largely but not entirely to blame. It's beyond my purpose here to go into the politics of that, but, for example, we've all witnessed the Senate's collusion with nominees who were willing to lie about abortion rights, personal sexual misconduct, and respect for settled law. The result has been to fill the highest bench in the land with perjurers and ideologically driven, partisan hacks. So, a lot depends on a relatively honest confirmation process. One might hope, based for example on voters' rejection of post-Roe abortion restrictions in places like Kansas, that part of the reaction to our present crisis would be a swing of the pendulum in that direction, in the direction, that is, of demanding
reasonably honest, forthright answers from nominees on such important questions as "Was Roe v. Wade correctly decided?" "Was Bush v. Gore correctly decided?" "Are you an Originalist?" "What is the importance of standing?" And acting appropriately on the answers. It could happen. For all our sakes, I hope it does.
