During the Democratic National Convention (DNC) this week, there have been many statements and speeches alluding to the restoration and protection of certain rights. But what has been missing from many of them is the institution that has been largely responsible for the abrogation of the rights being debated: the United States Supreme Court.
On Thursday, the Brennan Center for Justice hosted a forum of legal experts and lawmakers to discuss the High Court. Entitled “The Supreme Court and the Future of Democracy,” the forum featured Melissa Murray, professor at NYU School of Law, as moderator; Late. Sheldon Whitehouse (D-Rhode Island) and Rep. Jamie Raskin (D-Maryland); Adrianne Shropshire, Executive Director of BlackPAC; Elie Mystal, legal correspondent for The nation; and Michael Waldman, executive director of the Brennan Center.
The event started with a simple question: why is there a sudden increase in interest in reforming the Supreme Court?
“There’s an amazing ethical crisis taking place on the field,” Raskin said. “Everybody has their own billionaire sugar daddy, flies them all over the world, pays for their vacations, private school tuition. … The highest court has the lowest ethics.”
“There’s also a crisis of legitimacy based on terrible decisions, very questionable appointments that are taking place, and also blockades” of appointments, Raskin added, referring to the 2016 blocking of Merrick Garland from the court after he was nominated by former President Barack Obama.
Whitehouse also noted that the court’s decisions were very personal to voters.
“I think that the Supreme Court was very real with it Dobbs decision,” Whitehouse said, referring to the case that overturned protections for abortion rights that had existed for nearly half a century under Roe v. Wade.
Other egregious decisions over the past decade were deeply disturbing, of course, but that Dobbs the decision was less technical than the other decisions.
“When actual rights that Americans have are taken away from them by a court, that gets people,” Whitehouse said.
The court’s decision to give presidents extra immunity standards — which allow them to commit crimes if they want without consequence after they leave office, as long as they exercised executive power — was also “so off-base from the way people understand what America is” that it was “almost like a mini-Dobbs,” Whitehouse said, adding that “these are really bad and really shocked people.”
Mystal suggested that the openness to reform the High Court was a result of Conservatives essentially reforming the court for decades – after they failed to Roe v. Wade overthrown in 1992 with Planned Parenthood v. Casey.
Conservatives began saying to themselves, “we need to produce a new kind of Supreme Court justice, one who doesn’t care about precedent, one who doesn’t care about practicality and pragmatism,” Mystal said.
Indeed, right-wing judges are not “born,” but rather “made,” the extremists they are, Mystal added, “made in the laboratory” of the Federalist Society. The framing of their views was “designed intellectually to never allow black people, women, the LGBT community to have the full range of rights guaranteed to them in the Constitution,” Mystal added.
“What’s happening now is Democrats are getting the memo that the Supreme Court has already been reformed,” he said.
Shropshire noted that for black people specifically, the court has largely become a threat to their livelihoods, viewing the institution as a purveyor of white supremacy.
“We’ve been asking people in our polls this question for the last year: what is the biggest threat to the black community? In every poll, the biggest threat that people identify is the election of Donald Trump. Second is white supremacy. There is then a series of things that come after — lack of economic opportunity, lack of educational opportunity, etc.,” Shropshire said.
All that changed with their latest study.
“We’ve seen the Supreme Court climb the ladder. We just came off the mark with a vote a few weeks ago. The list is now: the election of Donald Trump is the biggest threat, followed by the Supreme Court, followed by white supremacy,” said Shropshire. “I would say it’s because those three things are not independent in the minds of black people that the Supreme Court represents institutionalized racism.”
The panel also discussed recent proposals by President Joe Biden to reform the Supreme Court, including introducing staggered 18-year term limits for each justice, ensuring that each presidential term will see two justices nominated on a regular basis, as well as creating an enforcement ethics code and adopting a constitutional amendment to reverse the court’s presidential immunity ruling.
Murray noted that all major democracies in the world do not have lifetime terms for their highest courts, and that 47 states in the country do not have such standards either. Of the three states that have no limits on how long a lawsuit can serve, two have age limits.
She asked the panel if these ideas were enough.
“These [reforms] would be a big deal,” Waldman said. “We should understand the significance of President Biden doing this, given his long years of working on this and his opposition to this kind of institutional reform of the Court.”
Waldman added that as a member of Biden’s Commission on Potential Supreme Court Reforms, formed early in his presidency, the group was told not to jump to any conclusions. Nevertheless, the commission found “substantial bipartisan support” for term limits.
The commission “was a way to learn that there was a national consensus on that issue in particular,” Waldman said.
But such changes, which would come from Congress and be signed by the president, could in theory be overturned by the current incarnation of the Supreme Court. Mystal said that to make sure that doesn’t happen, it would also be necessary to expand the court.
“The problem is… [you have to convince] John Roberts that term limits are constitutional,” Mystal said, adding:
I support extending the right as a first step. … Judicial expansion is the thing that puts the rabid, conservative, supermajority to sleep long enough for us to reform the institution and then do all the beautiful things we want to do in terms of term limits and ethics reform.
In particular, Democratic presidential candidate current Vice President Kamala Harris expressed an “openness” to exploring the idea of expanding the court when she ran in the party’s 2020 primary.
Polls also show that a majority of Americans would also support the idea, with an October Marquette University Law School poll showing 54 percent in favor of reform, with 46 percent opposed.
Join us in defending the truth before it’s too late
The future of journalism is uncertain and the consequences of losing it are too serious to ignore. To ensure Truthout remains fearless, tough and 100 percent independent, we need to raise $14,000 by midnight tonight. Every dollar raised goes directly to the cost of producing news you can trust.
Please give what you can – because by supporting us with a tax-deductible donation, you’re not just preserving a news source, you’re helping to protect what’s left of our democracy.