Article III, Section 2 of our Constitution creates the Supreme Court.
In its 1803 Opinion in Marbury v. Madison, the Supreme Court said “It is emphatically the province and duty of the Judicial Department to say what the law is.” The Supreme Court Decided that the Supreme Court alone gets to say what the law is. It doesn’t matter what Congress and the President say about the laws they enact, because the Supreme Court alone gets to say their laws mean whatever the Supreme Court wants them to mean. The Supreme Court alone gets to say our Constitution means whatever the Supreme Court wants it to mean.
The qualifications to be a Supreme Court Justice are underwhelming. Justices do not have to be legal scholars, lawyers, or trained in the law. They can have been convicted of perjury and bribery. They can have an IQ below 100. They can declare personal bias against our President, as Ruth Bader Ginsburg did. They can declare the Supreme Court to be a biased entity, as Justice Sonia Sotomayor did in Wolf v. Cook County, Illinois. They can be married to political activists, as Clarence Thomas is. They can engage in public political debate, as John Roberts and others have.
What if legal scholars and historians and we could say what the law is? Would we be worse off? Would corporations be people? Would money be speech? Would politicians have a constitutional right to steal votes with lies and false campaign promises?
Everyone agrees the Supreme Court is a political entity. The proof is indisputable. Major Party presidential candidates prove it time and time again, when they argue over what political bias a Supreme Court nominee should have.
If the Supreme Court were a body of smart, wise, ethical, apolitical constitutionalists, how could it have Decided in 1896 that “Separate But Equal” is constitutional (Plessy v. Ferguson), and Decided in 1955 that it is unconstitutional (Brown v. Board of Education)? How could it have Decided in 1857 that a Black from a “slave State” has no more constitutional rights than a soiled diaper (Scott v. Sandford)?
In 2008, I voted for presidential candidate Barak Obama, because he promised to “regain America’s moral stature in the world” by closing Guantanamo by Executive Order. Silly me. I forgot the Supreme Court says that politicians have a constitutional right to lie and make false campaign promises — that politicians’ right to Free Speech supersedes our precious right to vote.
In 2010, the Supreme Court told us that mega-rich corporations and mega-rich human beings have a constitutional right to exercise more influence over our elections than we exercise (Citizens United v. Federal Election Commission). What happened to its 1964 “One Person, One Vote” principle in Reynolds v. Sims? What happened to the 17th Amendment, which says: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof”. Not “elected by mega-rich corporations and mega-rich human beings from other States.”
Some of us believe the Supreme Court is a Supreme Disgrace.
On February 21, 2020, Supreme Court Justice Sonia Sotomayor said: “this Court is partly to blame for the breakdown in the appellate process.”
On March 4, 2020, Senate Minority Leader Chuck Schumer led a mob to the Supreme Court and said: “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.”
On April 9, 2021, President Joe Biden signed the “Executive Order on the Establishment of the Presidential Commission on the Supreme Court of the Unites States”. The Executive Order says the Presidential Commission “shall produce a report for the President that includes … An account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system”.
On April 15, 2021, Senator Ed Markey, House of Representatives Judiciary Committee Chairman Jerrold Nadler, Congressman Mondaire Jones, and Congressman Hank Johnson introduced legislation. If it becomes law, it would be the “Judiciary Act of 2021”. It would increase the number of Supreme Court Justices from 9 to 13. At a press conference that day, Senator Markey said: “The United States Supreme Court is broken.” In a tweet the day before, Congressman Jones said: “Our democracy is under assault, and the Supreme Court has dealt the sharpest blows.”
Are the Supreme Court Justice, President, Senator, and Congressmen merely trying to re-make the Supreme Court in their image, or are they right — is the Supreme Court a Supreme Disgrace? Is your answer the same for both the Roberts Court of today and the Warren Court of the 1960s?