The Supreme Court Shares a Big Part of the Blame by Maria Grant

It’s hard not to blame the Supreme Court for a huge chunk of the nightmare we’re currently experiencing.

The Supreme Court is supposed to decide whether laws and government actions follow the Constitution. It is also supposed to interpret laws that Congress passes to decide if they are being carried out correctly.

Republicans have sought to prevent the Court from executing these and other functions when Court decisions would undermine executing their agenda. They have done so by establishing strict ideological tests for potential nominees and, whenever possible, blocking the confirmation of Justices that Democratic presidents nominate. The Justices that Republican presidents appointed have resorted to questionable interpretations of the Constitution, thereby producing decisions that align with the Republican agenda, sometimes overturning decades-long precedents.

Currently conservatives hold a strong majority on the Bench. The two Presidents Bush appointed John Roberts, Samuel Alito, and Clarence Thomas. Trump appointed Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Obama appointed Sonia Sotomayor and Elena Kagan. Biden appointed Ketanji Brown Jackson.

The Federalist Society and the Heritage Foundation play a central role in selecting conservative justices. Both organizations provided Trump with a list of potential nominees to the Supreme Court. All six current conservative Supreme Court Justices have ties to the Federalist Society. In many cases, the failure of the Supreme Court to uphold the Constitution was caused by these two organizations.

In recent years, the Court overturned Roe v. Wade. It also gave the President wide but not absolute immunity from criminal prosecution for actions in office.

Thanks to Trump’s almost unchecked immunity, he initiated military operations without consulting Congress and deployed National Guard troops to several cities across the country without consulting the governors of the states involved. He tore down the East Wing of the White House and took over the Kennedy Center, adding his name to it, without going through proper channels.

Congress has failed to step up to the plate. Despite private misgivings, congressional Republicans have acquiesced to the President’s authoritarian power grab. (More on Congress’s failures in a future column.)

The Supreme Court ruled that federal prosecutors overreached when they used an obstruction law against January 6 rioters. It has also dismantled some federal administrative laws such as environmental protection regulations. It struck down a ban on federal bump stock devices for guns. And it stated that race-based university admission policies at Harvard and the University of North Carolina could no longer be used, upending decades of so-called affirmative action.

The Court also intervened in cases involving the Trump administration’s efforts to control independent agencies which many claimed was a major overreach.

Given the importance and ripple effect of the case regarding the President’s authority to levy tariffs (under the Constitution only the Congress can impose a tax), the Court has been disappointingly slow in issuing a decision.

More than 50 percent of Americans disapprove of the Supreme Court’s job performance. Americans view the courts decisions as political rather than focused on interpretations of the law, with many viewing the Court as having a far-right agenda. Plus, scandals around undisclosed luxury travel and gifts accepted by justices, coupled with controversial rulings, have significantly damaged public trust. (Clarence Thomas took numerous undisclosed trips, funded by Republican billionaire Harlan Crowe, involving private jets, yachts, and expensive resorts. Samuel Alito flew an upside-down flag outside his Virginia home, a symbol of the effort to block certification of the 2020 presidential election results.)

So, how can this situation be rectified? An ideal but unrealistic answer would be for Presidents to select Supreme Court justices based on their competency, experience, and commitment to the Constitution. Because this now seems like a pipe dream, immediate reforms are needed.

There have been serious calls for structural change including term limits. The Center for American Progress advocates for 18-year term limits to prevent justices from holding power for life and to make the appointment process more predictable.

Some propose court expansion to balance the ideological tilt, though this is seen as highly controversial, and some see it as a threat to long-term stability. I agree.

There are also calls for legislative checks that would allow Congress to use its power to limit the Court’s authority on certain issues or to override specific interpretations of federal law.

Last year, the Court released a code of conduct, but there currently are no enforcement mechanisms.

The framers of the Constitution created the Supreme Court as an important part of the system of checks and balances that are essential to our freedom. The Supreme Court is meant to serve the people, not the partisan interests of presidents who nominate individual justices or senators who vote to approve them.

Chief Justice John Roberts once wrote, “I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.”

These words have not been followed with actions. Mr. Chief Justice, you, and some of your colleagues, have let the country down. We are far from a country with endless possibilities for all Americans. Your failures are a major disappointment and, much more seriously, have jeopardized our democracy.

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Maria Grant, formerly the principal-in-charge of the federal human capital practice of an international consulting firm, now focuses on writing, reading, music, bicycling, and nature.