The Supreme Court is corrupt.
You might hear that and think, “Well, Jamelle, you just disagree with the rulings. They’re not corrupt. They’re doing their jobs.” But I want to posit to you that they’re not doing their jobs. They’re in fact doing something very different. They’re acting as a super legislature, an unelected group of people who have taken it upon themselves to correct Congress. Not when Congress has overstepped its bounds, not when Congress has overstepped its powers, but when the court simply doesn’t like what they’re doing.
Typically when we use the word corruption, we are thinking about monetary corruption, bribes and the like. And it should be said there’s some of this. Clarence Thomas in particular is known for taking large sums, large gifts from his wealthy benefactors. Alito has also been the beneficiary of wealthy friends. So there is that kind of corruption as well.
But corruption also has a broader meaning. It can mean the malign use of power, the substitution of the public trust for your own private will, your own private interest. And that is more than anything else what is happening with the Supreme Court. You can see it in many different ways. The Roberts Court is quite fond of simply ignoring the plain text of the Constitution whenever it gets into the way of their particular political and ideological projects.
The Roberts Court wants to do a few things. It wants to gut the Reconstruction Amendments. It wants to aggrandize presidential power. It wants to free corporate speech. It wants to allow the wealthy to interact with the political system in any way they choose. And it wants to pursue the particular partisan interest of the Republican party. And so when the text of the Constitution gets in the way, they changed the text or they ignore it.
The text of the Constitution clearly gives Congress the power to handle racial discrimination and voting. And when it came up to the court in 2013 in Shelby County, the court simply made up a new doctrine, state sovereignty. All states have to be treated equally in order to undermine a provision that subjected states with histories of voting discrimination to stricter scrutiny by the federal government. When the court wanted to protect its special boy, Donald Trump from criminal prosecution, it invented a doctrine of criminal immunity for core duties found nowhere in the Constitution and frankly contradicted by the text, history, and theory behind the Constitution. More recently, rather than just shutting down Trump’s efforts to unravel birthright citizenship, the court has taken them seriously despite the clear text and history of the 14th amendment. Where the text interferes with partisan political goals, this Supreme Court says to hell with the text.
The other manner in which the court demonstrates corruption is by not having any particularly consistent jurisprudence. Despite grand claims of being originalist or textualist, this court often decides not based on any particular theory of jurisprudence, but simply on whether they have a decided interest in the case in question — a partisan or political interest.
Consider two days in 2022, back to back. On the first of those days, the court held that because you cannot find gun regulation in the annals of American history, therefore there’s no history or tradition supporting New York State’s attempt to regulate individual gun ownership. And then the very next day, the court releases an opinion stating that despite the fact that you cannot find very much evidence of abortion regulation in the American past, that doesn’t mean states can’t regulate abortion or ban it outright. On one hand, gun rights, which the court likes, history is an obstacle. On the other hand, abortion rights, which the court does not like, history is no limit.
In Trump v. Hawaii, the court held that yes, the Trump administration can use race, can use religion, in determining its travel bans — there’s nothing against the Constitution involved in that. Just last year, the court held that you can use race in immigration stops. That’s why we’re calling them Kavanaugh stops. (Brett Kavanaugh wrote that opinion.)
But as it comes to voting, as we’ve just seen, states can’t use race to remedy past discrimination. States can’t consider race to ensure fair minority representation. States can however engage in racial gerrymandering as long as it’s done under the guise of partisan gerrymandering. What’s the difference? Well, the court likes the president’s nativeist policies. It likes the fact that Republicans can try to gerrymander themselves in the permanent majorities. And so, if it needs to use race to do that, the court has no particular problem with it. Only when it comes time to hamper discrimination to protect rights is race impermissible.
The other manner in which we see the court acting in a corrupt way is in its clear preference for Republican presidents and Republican power. Under Trump, aggressive assertions of executive power were given deference. They were allowed to move forward. Aggressive reinterpretations of existing congressional statutes, reinterpretations that may cut against Congress’s intent were given deference, allowed to move forward. Broad policy changes — such as ending agency independence against the clear text of the law and against 90 years of precedence — are given deference under the idea that the president needs to be able to pursue his priorities.
But Barack Obama wants to use the EPA to reduce carbon emissions? Well, that’s a major question. Congress has to deal with that. Joe Biden wants to forgive student loans? Well, that’s another major question. Congress has to deal with that. Under this court, presidential power when held by Republicans is broad and expansive. Under Democrats, it’s cramped, barely legitimate.
I could go on like this, but the last point I’ll make, the last example of the corruption I’ll give, is the total absence of regularity by this court. What makes a court a court is that there are well-defined procedures, processes — they’re predictable. Courts pay attention to precedent. They have the same rules for all plaintiffs and they explain their decisions. Not so much this court.
There’s the shadow docket in which this court issues broad and important rulings with no explanation, shoots down district court decisions with no explanation, and then insists that those courts hew to its new precedents, which it has offered, again, with no explanation.
In cases where the justices have clear political or ideological interests, they will make up fact patterns to support their case. A religious liberty dispute where a coach says that he is having a private prayer, but in fact he’s having a large public prayer pressuring other students. Well, Neil Gorsuch will simply pretend that the private prayer is what was happening, not the actual public prayer. A plaintiff sues not because they have any particular injury because of a law, but because they hypothetically might have an injury because of a law, despite the fact that they’re not even engaged in the particular business that would bring them that injury. Well, the court says, “Hey, no problem. We’ll still give you standing and we’ll still decide your case because we have a vested interest in making sure that religious liberty means you can discriminate against LGBTQ people.”
And again, there is the shadow docket. Major decisions made without a whiff and inkling of reasoning. Congressionally mandated agencies disrupted. Tens of thousands of livelihoods destroyed. All without a single bit of explanation, simply deference to the president’s desires and decrees. It is capricious and arbitrary. It is the essence of an anti-democratic action of an anti-constitutional action.
It is abundantly clear that as long as John Roberts has his majority, nothing the left of center in this country wants to do is safe or stable. Everything can be killed by the court. We can have democracy and self-government in this country or we can have the Supreme Court as it exists, but we cannot have both. We cannot have both.
And so what is there to be done about the court? There is a real chance that Democrats will have a trifecta in 2029. They might even have large majorities. And in that environment, court reform must be table stakes. There is no other choice, no other option. The rest of the agenda is simply not possible without court reform.
The usual proposals for court reform are expanding the court. And I think that should be done. Expand the court, expand the entire federal judiciary, expand the number of circuits, expand the number of justices commensurate with the circuits. But I think there’s much more to be done than just court expansion. Because it’s not simply that the court is not on the right side. It’s that the court is too powerful. It’s concentrated too much power in itself and we have to deal with a concentration of power.
So court reform legislation has to be geared towards reducing the court’s power. One of those tools would be what’s called jurisdiction stripping, which is permitted under article 3 section 2 of the Constitution. Congress should say that the court simply cannot adjudicate these particular issues. The Congress should impose ethics reform on the court and it should put sharp limits on justice’s ability to get book deals, go on tours, collect honorariums.
But that’s all small ball stuff. There are more radical options as well. We’re going to talk about those more radical options that really would break up the power of the court and cut the court back down to size to remind it that it doesn’t stand above the entire American system as a council of kings, that it is very much part of the American system, in dialogue with the other branches and accountable to the people.
So we can turn the Supreme Court’s neoclassical building, first and foremost, into a museum of some sort and the court will return to its original place: the basement of Congress. Hell, maybe even an office park in Northern Virginia. I don’t care. Court will lose its ability to select its clerks. We’ll take away a patronage system that has corrupted the legal profession. And the court will lose its ability to choose cases. Remember, much of the court’s procedure is already by statute. The building, the clerks, the ability to choose cases, all of that already determined by Congress, and what Congress can give, Congress can take away. The only thing the Constitution mandates that there shall be a Supreme Court. And it gives it a very narrow original jurisdiction. Disputes between states, disputes involving ambassadors, impeachments, that kind of thing.
So, I know I said I support expanding the court, but I also said that was small ball. The other thing you could do totally constitutionally is restrict the court exclusively to its original jurisdiction — to end its ability to hear appeals and then instead to create a new national appeals court comprised of judges from all the existing circuits. We’re already having full-on judicial expansion and so we’re going to create a couple more circuits. Let’s say we have 15 total circuits and each circuit sends two judges to this national appeals court. A random panel of nine judges chooses cases and a random panel of nine judges hears cases. The original Supreme Court can, again, hear whatever is in its original jurisdiction.
If that sounds too extreme to you, then the other option is just to expand the Supreme Court, give it 20 justices, 21 justices, and have it hear cases based off of randomly selected panels. I’m sure there are other options we can think of here, but the goal is not simply to make the court something that is favorable to my views. The goal is to make the court weaker. The goal is to make it more difficult to game the court’s decision-making. The goal is to uncapture the court, to transform it into an actual court and not some tool of partisan and ideological control. There is simply no other choice here. We can have government by judges or we can have government by the people. But we cannot have both. We cannot have both.
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