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Decisions by the U.S. Supreme Court, just in the past few weeks, have profoundly changed life in our nation. These changes involve abortion, gun control, government funding of religion, and most recently, climate change regulation. All of these rulings were made with a 6-3 or 5-4 conservative majority.

In effect, many aspects of our lives are now controlled by six individuals who will serve until they die or choose to retire. They are not accountable to the other branches of government, or to the people. Their decisions cannot be overturned by anyone, and yet, those six justices are overturning a half-century of legal precedent.

In other advanced democracies, the courts have less power. As German Lopez says in an op-ed in the New York Times:

We are a global outlier…. In other advanced democracies, the courts are more restrained… The highest-level courts in other rich democracies tend to be less dominant. Elsewhere, courts can still overturn laws and restrict the government’s reach, but they often face sharper limits on their decisions.

Many countries have term or age limits: Judges on Germany’s federal constitutional court, for example, serve for 12 years or until age 68, whichever is sooner. But in the U.S., the court’s makeup of six conservatives and three liberals is likely to remain in place for years if not decades. Furthermore, if justices are careful about timing their retirements to benefit their ideological side, it could last even longer. As a result, changes in our society can end up having little influence on the Court.

Limited terms and mandatory retirement ages create opportunities for more recently elected lawmakers to remake the highest courts and keep them in check. “There is some accountability,” said Tom Ginsburg of the University of Chicago Law School. “If a court is too out of control, there is pressure to rein it back in.”

Many countries have term or age limits… But in the U.S., the court’s makeup of six conservatives and three liberals is likely to remain in place for years if not decades.

By any measure, the current Court is out of control, overturning legal precedent from many previous decisions. Were they all wrong? Is this Court that much smarter than all its predecessors?

As Erwin Chemerinsky, professor of Constitutional law and dean of the UC Berkeley law school said in an LA Times op-ed,

It is stunning how far and how fast the conservative justices have moved to overrule constitutional law principles in a single week. It’s clear that they would have decided countless cases over the last half-century differently from their predecessors, and have no hesitation eliminating precedents they don’t like. The implications for all of our rights and the society we will live in is staggering.

There is another reason that the Supreme Court has become more dominant in recent years: The political gridlock in Congress has created a power vacuum, and the Court is happy to fill it. Normally, issues like gun control, climate change, and even abortion would be handled and resolved by legislation. Not in today’s world, with two opposing factions, each intent on blocking anything the other tries to do.

Let’s return to German Lopez:

Congress’s struggles demonstrate a broader problem: The U.S. has built so many checks into its political system that it has become what political scientist Francis Fukuyama calls a “vetocracy.” Each part of the lawmaking process, from the House to the Senate to the White House, is a potential veto point for bills. Then there are additional barriers — like the Senate filibuster, which requires 60 of 100 senators to pass most legislation. The many veto points make it difficult for even the party that controls both Congress and the White House, as the Democrats now do and the Republicans did in 2017 and 2018, to get much done. The courts fill the void.

What can be done to correct this?

Constitutional amendments are very difficult to pass, and the chances of accomplishing them are slim to none. But that is not the only way for a Supreme Court decision to be overturned. An Act passed by both houses of Congress and either approved by the President or passed by Congress over a presidential veto becomes law. There are many examples of Supreme Court decisions that have been overridden by Congressional actions.

That also would be a steep hill to climb, with all the Red states opposing such a move.

The President is limited in the actions he can take, as his recent Executive Order illustrates (addressing mainly the issue of contraceptive availability, and facilitating travel to states where abortion is legal).

Some have advocated expanding the Court from nine to thirteen or more justices. The Constitution does not specify the number of sitting judges, and it has changed six times over the history of our nation. Adding four liberal justices would result in a 7-6 liberal majority. The problem with this is that as soon as Republicans regain control of Congress, they would add more justices, restoring a conservative majority. This could continue indefinitely, each time control of Congress changes. Can you imagine a Supreme Court with a hundred or more members in a few decades?

None of the actions proposed above are likely to happen in the current Congress, despite narrow Democratic majorities in both houses. So it appears that we are stuck with those six right-wingers who will continue to attack personal freedoms that they don’t approve of, whilst inventing new ones, like citizen ownership of military weapons, and church schools funded by taxpayers.

We live in a judicial dictatorship and, like other dictatorships, there is not a lot we can easily do about it. Not without a lot of pain and suffering. 

Bert Bigelow graduated from the University of Michigan College of Engineering, then pursued a career in electronic systems and software design. He has always enjoyed writing, and since retirement, has produced short essays on many subjects. His main interests are in the areas of politics and religion, and the intersection of the two. You can contact him at bigelowbert@gmail.com.

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Jonathan MS Pearce

A TIPPLING PHILOSOPHER Jonathan MS Pearce is a philosopher, author, columnist, and public speaker with an interest in writing about almost anything, from skepticism to science, politics, and morality,...