I used to teach a course on the US Supreme Court, starting around 1990 and until I retired almost three decades later. I’ve lost my patience with it.
The Court betrayed any sense that it should be impartial or nonpartisan, consistently favoring Republicans, from its choice of Bush over Gore in 2000, against all the rules about how to run a recount,[1] to its refusal to honor the constitutional text of the insurrection clause in 2024, and its refusal in the interim to curb the state legislative gerrymandering that gave Republicans control of state legislatures, regardless of the wishes of the voting public.
The Court betrayed any respect for precedent and any concern for women when it overturned Roe v. Wade and left women scrambling for reproductive care.
It has consistently favored big business over Americans of ordinary income.[2]
And it threatened the core of our democratic system with a series of decisions authorizing people to carry guns in public, guns that threaten nonpartisan election workers, elected representatives that conservatives dislike, and people at demonstrations advocating causes they despise. The ultimate implication of their decisions was the insurrection at the Capitol which the Court then blessed by refusing to allow states to keep the inciter-in-chief off the presidential ballot.
I no longer have any confidence in the Court to get anything right, including to protect our democratic system of government.
So what is to be done?
Here is the text of the Constitution’s provision for the Court:
“The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.”
Notice what is protected – their tenure “during good behaviour,” and their salaries “which shall not be diminished.” The Constitution says we can’t touch those.
Notice that nothing else is protected – not their courthouse, their staff, their equipment, the marshals and police that protect them. The courthouse went up in the 20s. A century later it can come down. Everything else, including the upkeep of the building, is part of the budget. The budget can be zeroed out. And money not appropriated cannot be spent. Republicans know that very well, which is why they keep holding up the budget and it’s time Democrats took that knowledge to heart. Stop the Court. Shut it down.
The Court has been a tool of devotees of the so-called “Lost Cause,” the cause of slavery and disunion, consistently dismantling the voting rights of African-Americans and promoting gun rights that only rebels could appreciate. When the NRA was taken over by insurrectionists, it found things it wanted the Court to do to help them dismantle the US in favor of the Confederacy.
Except for the Warren Court, the Supreme Court has been more of a problem than a help. To heck with mincing words – it’s time to call this outrage treason, dismantle the Court, take it out of rebel hands, and then maybe we can reorganize and put it in better hands. No, I wish I were kidding but I’d do whatever it takes to get rid of the Roberts Court. At the very least, I’ll do what I can to keep Trump, who appointed three of its members, out of the White House.
— Steve Gottlieb – If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on March 26, 2024.
[1] Stephen E. Gottlieb, Bush v. Gore Typifies the Rehnquist Court=s Hostility to Voters, in The U. S. Supreme Court and the Electoral Process 58 (Washington, D.C.: Georgetown Univ. Press, David Ryden, ed., 2nd ed., rev., 2002).
[2] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 212-26 (New York: NYU Press 2016).
Constitutionalism and Democracy 