As an attorney who focuses entirely on appeals, in both state and federal courts, I have been an avid SCOTUS watcher. I also proudly took a lawyer’s oath to uphold the US Constitution and serve the rule of law when I was admitted to the USSC bar several years ago.
The Supreme Court has been in the news a lot lately, and the tenor of coverage is getting more and more negative. I believe the Supreme Court is a cornerstone of our democracy and an indispensable part of the judiciary. Even so, I too have been turned off by what appears to be relentless politicking when it comes to the Supreme Court.
So I was pleased to hear that President Biden issued an Executive Order to create a Commission on the Supreme Court. According to the Order, the purpose of the Commission is
…to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.
It seems beyond question that the type of reform contemplated by the Order is absolutely necessary at this point in our democracy. Of course, the news fell like a led zeppelin in other parts of the legalsphere, let alone the political newsphere.
In a tweet shortly after the announcement, @SCOTUSblog asked why we supposed the Commission was created. I construed that question to mean why do we think reform is necessary. Here is my two cent answer (disclaimer: this is not a legal brief, or even an academic essay, just my thoughts off the top of my head):
1. Because we deserve a Supreme Court that is evenly balanced between left and right-leaning policy positions. If the purpose of the Supreme Court’s pinnacle judicial review is to create rules of law that are fair and easily applied, then the political composition of the justices should reflect the political composition of the entire country. Our laws should not lurch dramatically from left to right depending on who managed to capture the court (through more and more nefarious methods) at any given moment in time.
2. Because hysterical fights about a nominee serve NO ONE and hurt the integrity of the entire judicial system. If we reform the Supreme Court to create an equal number of justices from left and right-leaning political preferences, with a blind assignment of rotating panels so we can maintain an odd-number of justices for voting on any particular case, then we will no longer have to fight to the death over each nominee for fear that it will skew the political leaning of the court for an entire generation. And if you think the political leanings of a Supreme Court justice have no bearing on their decision making, then you are living with a convenient but insidious fiction.
3. Because “originalism” (ie, the judicial doctrine of applying the letter of the law as it was understood at the time of enactment or passage) is a Greek god level of myth. A review of SCOTUS decisions, particularly those from the most famous proponent of originalism, Justice Antonin Scalia, shows that policy preferences override the idea that a provision of the Constitution or law should be applied in accordance with their original meaning.
For example, the 2nd Amendment grants the people of the United States the right to bear “arms,” but what did “arms” mean in the 1790s? It most certainly did not mean the right to carry an AK-47 or an AR-15 when those “arms” were not even incipient thoughts in the minds of anyone in the 18th century. The words of the 2nd Amendment referred to muskets, the dominant homebound arms in that time; and the right to bear them referred to the colonists forming well regulated militias to fight tyranny (because they were terrified that the newly created federal government might come to resemble the monarchy they fought to secede from).
So the original meaning of the words making up the 2nd Amendment did not include the right for the people of the United States to indulge their automatic weapon fetish so much so that the occasional insane person finds it very easy to massacre dozens of people in less than a minute. But find me an “originalist” on the Supreme Court that has upheld any law attempting to regulate automatic weapons.
Or how about the 10th Amendment, which says any powers not expressly reserved(by the CONSTITUTION to the federal government or to the states belongs to the PEOPLE—and try to square that with our modern Congress’ feeling of entitlement to prohibit cannabis, even when nearly half the STATES, let alone more than half the PEOPLE, have decided that cannabis should no longer be illegal. And note that Justice Scalia specifically endorsed cannabis prohibition laws as constitutional because (and I paraphrase his comment to me when I asked him about this during a meeting with him while I was in law school) “there has never been any doubt that Congress has the power to make cannabis illegal.” Really? Please show me which original words in the Constitution put that power beyond doubt.
The mental gymnastics necessary to reconcile the myth of “originalism” with the actual decisions of the Supreme Court justices is exhausting. It’s not lost on anyone that their decisions are informed by their politics. Better we stop denying it and work on creating a Supreme Court that is evenly divided between left and right-leaning policy positions. In such a case, the justices will reach decisions that are compromises between the two. And that will be good for the rule of law.
Thank you for reading my soapbox rant. And now over to you, do you see any compelling reason to reform the Supreme Court? Share them in the comments below or get in touch with me here.
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