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  • Dan Connors

Can the Supreme Court be fixed?

“When the votes of justices in controversial cases can be predicted at the outset, constitutional law simply becomes partisan politics by another name.”

“You seem to consider the [Supreme Court] judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Thomas Jefferson

How did we get here? Can justice prevail, or more importantly, can we even recognize what justice looks like anymore? In a polarized society, justice seems to be when our side wins and the other guys lose. In the real world, justice is imperfect, but ideally it results in a solution that all sides can accept and work with. Right now that isn't happening.

The darkness hovering over our judicial system starts with the US Supreme Court, now more partisan, embattled, and full of corruption than ever in the opinion of many. Their approval ratings have been declining for years, and the court is now underwater with roughly 60% disapproving of their performance. The court system, which is supposed to be an independent, unbiased arbiter in national disputes, is instead an extension of the partisan, political battle that already plays out in legislatures everywhere.

How did this all happen? The Supreme Court has never been free from politics, but its lifetime appointments were supposed to shield it from political pressures. Appointments of Supreme Court justices used to be free of controversy and political machinations. In 1993, Ruth Bader Ginsburg was approved by a Senate vote of 96-3, but since then the votes have become tighter and much more partisan. The Senate actions of 2016-2020 that refused to seat Merrick Garland ten months before an election but seated Amy Coney Barret just weeks before one go down as one of the biggest stains that still haunts the entire process and threatens the legitimacy of the court itself.

Thanks to the Federalist Society, a powerful group that was founded during the Reagan years, all future appointees may face philosophical litmus tests that eliminate all but the most conservative, doctrinaire judges. This is not how you build an objective and unbiased judiciary. It's how you create a rubber stamp for the right. I would say the same if the Federalist Society screened out all but the most extreme left-leaning judges.

Part of the problem is that few people follow the rulings of the Supreme Court or even know what they do. For 50 years, cynical politicians have used the abortion issue to push the court to the right, and the public has little knowledge of the impacts of most of their other decisions. Most voters oppose the insane amounts of money that now flow into the political arena, but have no idea that the 2010 Citizens United decision blew up all of campaign financing. And ruling after ruling in the past five years has favored the Republican Party, large corporations, and the rich in mostly party-line votes.

Perhaps abortion should never have been handled in the courts in the first place. It's an emotional issue, and the constitution is silent about it. Politicians have milked that issue for decades, and at the end of the day, it truly is an issue that belongs to women, their doctors, and their particular faith.

It could be worse. The United States ranks 26th in judicial fairness according to the World Justice Project- just behind Uruguay. We aren't quite as bad as countries at the bottom of the list like Haiti and Afghanistan, but we are headed in their direction. And which country is #1? Denmark, where its supreme court justices are appointed outside of the political system by a minister and an independent board of judges. (And Danish judges must retire by age 70.)

I have a little experience with the concept of independence. As a CPA, I have to avoid conflicts of interest and hide my personal and political feelings in dealing with all clients. I can't imagine that our Supreme Court justices, who owe their appointments to political entities and some of whom accept lavish vacations from wealthy donors, could possibly consider themselves independent. The system is rotten and everybody knows it.

A few hundred feet from the Gateway Arch sits a statue of Harriett and Dred Scott, the victims of perhaps the worst Supreme Court decision in history. With one decision the court made all black people non-citizens and set the stage for the Civil War. The Scotts went on to be heroes and Chief Justice Roger Taney was tarnished by that terrible ruling. Can this Supreme Court induce yet another Civil War? Probably not, but they are making things much worse for an already skeptical and divided nation.

There appears to be wide agreement that something needs to be done about the Supreme Court, and soon. We can't just sit around and wait for people to die. Those running for office this fall need to address this rotting branch of our government and get it back to the high-minded, independent voice of wisdom and justice that the founders envisioned.

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