COMMENTARY: The Supreme Court is failing us
The Supreme Court is broken. Several decisions came down in June that show a shift in the court the U.S. has not seen in decades. The overturning of Roe v. Wade ended decades of judicial precedent. Additionally, other rights such as gay marriage and voting access will now potentially be up for challenge after being thought to have been settled law. Studies from Pew Research Center show collapsing public trust in an institution that is supposedly nonpartisan. The U.S. is more polarized today than it has been in a long time, making legislating harder than ever before. The judiciary is now almost becoming its own legislature in practice.
It is important to know the history of the court to understand how we got here. The Supreme Court was created by Article Three of the Constitution in 1789. As one of the three branches of the U.S. government, the Supreme Court’s role is to interpret laws passed by Congress against the Constitution. This was first established in the case of Marbury v. Madison in 1803. This created the process of judicial review for the Court. For example, if a law was passed that outlawed freedom of assembly, the Supreme Court would invalidate that law because it violates the first amendment. However as we would see throughout U.S. history, the ideology of the court could be heavily swayed based on who appoints justices.
The civil rights era was pivotal in how modern politics look at court rulings. Brown v. Board of Education in 1954 struck down state segregation laws in schools. Miranda v. Arizona in 1966 granted further protection from self-incrimination. Roe v. Wade in 1973 extended the right to privacy to protect access to abortions. These are just a few of the landmark cases that shaped many of the civil protections we have today. The cases also show how legislating from the bench would become more common. Instead of winning elections and passing legislation, laws can be created with the expectation that they will be appealed to the Supreme Court based on the ideological makeup of the Court. The upcoming Moore v. Harper case could throw electoral power to state legislatures. This would mean that state electors could be given to a presidential candidate despite how the population of a state voted.
The answer to this problem is to expand the court. While some may argue this is an extreme option, there is a long history of the number of justices on the Supreme Court being altered. The number of justices on the Supreme Court changed six times before it was settled at nine justices in 1869. President Lincoln was forced to remake the judiciary during the Civil War to combat southern judges. During the Great Depression, Franklin D. Roosevelt (FDR) had many of his laws struck down. He threatened to expand the court with his large senate majority. This threat, while hurting his party in the 1938 midterms, was successful in getting the court to back down and allow more of his New Deal legislation to pass Judicial Review. Therefore, history shows court expansion is not radical.
Expanding the court to twelve justices for example would make Presidential elections less contentious. A larger court would also better reflect the views of the country as a whole. This would also mean that justices themselves would have to be open to how long they hold on to their seat. As life expectancy continues to extend, we should revisit the idea of lifetime appointments. All other elected officials either have term limits or can be voted out. Term limits for justices should be instituted. An additional solution would be to have at least four seats on a twelve person court be permanently split between liberals and conservatives. So to bring it all together, the court could have four seats that are traditional lifetime appointments. Two for liberals, two for conservatives. The other eight seats would have rotating twelve year term limits to match with presidential elections.
The upcoming 2024 presidential election will be the first that has to deal with the ramifications of this current court. Imagine if the outcome of that election is influenced by the court? If one government body has a chance to rule on so many issues without any accountability, it could send this democracy down a dangerous path. The Supreme Court is losing legitimacy and reform is the only way to save it.
