Supremely Anti-Democratic

Cartoon of four current and one former Supreme Court justices throwing dirt on a grave with a tombstone that says Public Trust in the Supreme Court.

Yeah, I know, this is an old image because there’s a couple of former guys in there. But you get the point.

Back in September, U.S. Supreme Court Justice and Former Workplace Creeper Clarence Thomas gave a speech at the University of Notre Dame. In it, he chastised judges for becoming too political. “The court was thought to be the least dangerous branch and we may have become the most dangerous,” he said.

Then a huge Vortex of Irony formed over Justice Thomas, and pulled him and all attendees into a void, never to be seen again.

Not really, but such criticisms are rich coming from the Federalists Society’s 2016 keynote speaker. The Deeply Hurt Feelings of the Supreme Court’s Conservatives theme also popped up later that month, when Sort of Whiny Supreme Court Justice Samuel Alito called for the manager over criticism of fairly clear attempts to sink Roe vs. Wade via the Shadow Docket, which is a real thing and not a Marvel movie title. Again, at Notre Dame (which seems to be the hot spot for conservative justices to go gaslight), Alito said he believes all this media complaining is nothing more than an attempt to intimidate them. He singled out Atlantic writer Adam Serwer for direct attack. Proving you really should be careful when going after a sharp mind, Serwer clapped back:

Democratic Senator Sheldon Whitehouse from Rhode Island also chipped in his two cents on Alito yesterday in a Salon editorial.

The Supreme Court has never really been all that small-d democratic, but starting in 2000, it became anti-democratic in earnest. Ezra Klein shook the Very Serious People with his Vox piece in 2018 that pointed out this slide to anti-democracy, starting with Bush v. Gore to Citizens United to the Shelby County v. Holder decision. The latter pretty much gutted the Voting Rights Act and saw Chief Justice John Roberts curiously claim that racism was over. People got mad at Klein for daring to make such statements about one of our branches of government, but really, when you take out the institution worship-thinking and look at the evidence, it’s hard to make an argument he’s wrong.

Some of this is really a statement of a system in deep, deep need of reform, such as the Electoral College. Five of the nine justices were appointed by presidents who lost the popular vote. Unfortunately, such reforms are hard to pull off, as it is hard to imagine the Electoral College going away.

The Supreme Court itself has been the subject of reform talks. Double-unfortunately, this is even harder to pull off, largely due to these strange ideas about the Supreme Court that many Americans hold. There’s this belief that the number of justices was a sacred creed handed down by the Founding Fathers. It’s not. But people against increasing the number of justices often seem to insist it is.

The current lifetime appointments rule may be an easier place for reform, and there are indications that President Joe Biden’s Supreme Court commission report, to be released today, may indicate an openness to term limits. Another potential place for reform is how justices are appointed. An unbiased observer would have their work cut out for them defending Mitch McConnell’s Merrick Garland shenanigans, which by the way, did not involve Turtle Person Mitch breaking any set rules of the Senate.

All of this has lead to a crashing approval rating for the Supreme Court. Not that it matters to the five conservatives, who are obviously there to serve a minority of Americans. It’s no wonder they are not really the cool kids anymore, as they haven’t put together a great track record over the last 21 years, and I haven’t even mentioned the mystery of who paid off Brett Kavanaugh’s debts. All the solemn granite statues and institution-talk about hallowed ideals do not matter a damn in the face of all of this. Might be time for all of us who care about this nation to pry ourselves loose from the mythology.

The last word goes to Mia Weinberger, who brings us a hip-hop-style tribute to Ruth Bader Ginsberg (let’s hope one day we expand the court so we don’t have to worry our system hangs on whether a sick elderly lady survives another year). None of this is her fault, to be sure.

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