April 6, 2022: The Supreme Court: A Hopeless Case?

Posted on April 06, 2022 at 12:00 AM

By Elizabeth Spiro Clark, Chair, Task Force on Human Rights & Democracy

The maniacal effort of a Supreme Court Justice’s wife to use her position and influence with her husband to help the former president overturn a free and fair election that installed the current president seems to have been met with weak talk about that Supreme Court Justice’s recusal from cases on the January 6 insurrection in which the Justice’s wife participated at the instigation of her buddy, the former president. It seems that we should be talking about something more than recusal.

The treatment of the candidate for Supreme Court, Katanji Brown Jackson, by Senate inquisitors was also a shocking insight into what appears to be acceptable behavior both by Senators and by Supreme Court Justices.

Despite the long list of flaws in the Supreme Court, there has been almost no feeling that remedies the flaws that either exist or could possibly be enacted. Yale Law School professor, Linda Greenhouse, spelled this out in her article, “Should We Reform the Court” (New York Review of Books, April 2022) in which she reviewed The Final Report issued December 2121 by the Presidential Commission on the Supreme Court of the United States. Greenhouse said that the Report was made up of a 34-member commission who were assigned five different subjects, which led to five separate chapters in The Final Report, having been reviewed by the Commission as a whole.

Greenhouse said that the legal academy was “close to giving up on the Supreme Court.” However, Greenhouse reflects on the testimony of one witness, Samuel Moyn of the Yale Law School, who said that the problem to solve is not that the Supreme Court has lost legitimacy, but that it thwarts the democratic authority that alone justifies our political arrangements.

Greenhouse goes on to outline some of the proposals laid out in the report and she says that the negativity about any success in changing the Supreme Court is dissipating and that, as one example, the notion of abolishing life tenure could “actually happen.” She spells out one such proposal made in the report, which is for the Supreme Court members to have staggered 18-year terms, establishing that that would be within the powers of ordinary legislation. This system would provide two vacancies in every 4-year presidential term. (The writers of the report noted that there had been no turnover between Justice Breyer’s appointment in 1994 and the arrival of Chief Justice John Roberts in 2005.) As the report writers implicitly recognize, such a change would effectively abolish life tenure.

Greenhouse in her article makes the case that such an idea is no longer off-the-wall. Moyn noticed the importance of the proposals, including this one, in the Commission’s report saying that “ideas that were once fringe have now moved to the center of discourse.” It is just possible they said that the attempt to contain court reform might have helped unleash it.

At a minimum, the Greenhouse article on the report makes clear that organizations dedicated to preserving democracy here and elsewhere, among them the Woman’s National Democratic Club, should not be reluctant to take up one or more specific proposals and put their weight behind action to implement it.