The Supreme Court’s radical betrayal of justice, freedom of association, and the plain letter of the law make clear that reform will have to precede any prospect for a truly conservative judiciary.
For a long time, conservatives have worked and sacrificed to bring the Supreme Court to its current 5-4 right-leaning majority. They held their noses and supported moderates for president like Bush, McCain, and Romney, in hopes of principled high court appointments. Similarly, many who were skeptical of candidate Donald Trump voted for him for the same reason.
But what do conservatives have to show for their victorious takeover of the Supreme Court? Not much.
On Monday, three of five conservative justices neglected to hear an important Second Amendment case. Then, in another case, Trump-appointee Neil Gorsuch redefined “sex” in federal discrimination law to include transgenderism and sexual orientation.
It is the height of naivete to underestimate the long-term consequences of this case, Bostock v. Clayton County, Georgia. If it doesn’t explicitly state that religious schools must hire transgender teachers, that is the road it puts us on. If it doesn’t outright declare all bathrooms to be transgender safe spaces, it makes it inevitable.
Don’t call it a slippery slope fallacy when gay marriage was supposed to be the end all be all less than a decade ago.
It’s not easy or popular to defend freedom of speech or association in America today, as a careful consideration of the Constitution requires, but that’s what judges are supposed to do! This is especially true for the nearly unimpeachable ones with lifetime appointments at the top of the American judicial system.
Why isn’t a conservative Supreme Court adhering to the Constitution? Because there are deep-rooted problems with this institution, and conservatives can’t ignore them anymore. It’s time for judicial reform.
The founding fathers wouldn’t recognize the Supreme Court as we know it today. It has evolved into something at odds with the American form of republican government.
For example, most Americans today believe the Supreme Court has the final say on what is or isn’t constitutional. That is half-true at best. The states get to have their say as well, at least under the system the founders thought they created.
James Madison, the Father of the Constitution, wrote in his Report of 1800 that the Supreme Court was the “last resort” in relation to the legislative and executive branches of the federal government, but not in relation to the peoples of the several states, “from which the judicial as well as the other departments hold their delegated trusts.”
Madison understood that the states created the federal government, not the other way around.
That is to say, “the created cannot be greater than the creator,” as Michael Boldin, founder of the Tenth Amendment Center, has put it.
The Supreme Court tacitly recognizes this under its anti-commandeering doctrine, which finds much of its origin in the 1842 case Prigg v. Pennsylvania when Chief Justice Joseph Story ruled “the states cannot...be compelled to enforce” federal law.
Today, this balance between the states and the federal government is out of whack. Supreme Court justices are viewed as demigods, so merely by setting “precedent,” they are allowed to make law instead of interpret it.
The following are just a few of the suggested reforms that have floated around for some time.
- One idea championed by Texas Governor Greg Abbott is that when two-thirds of the states, through their legislatures, vote against a Supreme Court decision, that decision ought to be overturned nationwide. This reaffirms the states’ power to be a check on judicial overreach.
- Congress should also limit the court’s judicial review power, the doctrine which states the Supreme Court can declare a law unconstitutional. In 1868, the House of Representatives overwhelmingly passed a bill that said only a two-thirds majority of the Supreme Court could declare a congressional act unconstitutional. At the time, the Senate declined to pass the new rule, unsure of how the bill’s own constitutionality would be determined. Why not find out now?
- A super-majority on the Supreme Court should also be required before any law directly voted on by the citizenry through referenda, such as preserving traditional marriage, is invalidated.
- There should be more transparency, to do away with this shroud of awe over the court. The non-profit Fix the Court wants video recording during cases. Why not make all proceedings and deliberations public? Perhaps a compromise would air recordings after a case is decided.
- Each justice should issue his or her own opinion, not hide amongst the majority or minority. This would revert back to the way the court operated before Justice John Marshall abandoned the practice of seriatim.
- And to prevent dereliction of duty, the court ought to be compelled to hear all cases and not pick and choose. To accomplish this we would need to repeal the Judiciary Act of 1925. It would also mean the court would have to write short orders and not write social discourses.
- The court should also be limited in its ability to amend the Federal Rules of Civil Procedure, a power granted to them by the Rules Enabling Act of 1934. If that act were to be repealed or amended, the court would return to the “conformity principle” and this would return powers to the states.
The American system must be renewed from time to time, but there is not enough time to wait around every four or eight years for a new president to come along and change the face of the court. These justices, whose current average age is 69, have access to the best healthcare in the world and are living longer than ever before.
It’s obvious that nine black robes wield too much power today over the lives of 320 million Americans, not to mention their elected representatives of all levels. Every decision, far-removed from society, is a glory for one side of the country and a derogation for the other. This never ending bloodless civil war isn’t worth the struggle either side has put in.
If there is hope for mending the divides in America, it is in downsizing, decentralizing, and demystifying the Supreme Court’s power. Conservatives are fortunate to have the American tradition to look to for guidance in this mission.