The conservative 6-3 super-majority has indeed turned the “supreme” into the “Supreme Court”, and not in a good way.
The court’s major rulings in the just-terminated term continued to defy precedent and expand its powers vis-à-vis the President and Congress. Meanwhile, reports of judges’ ethical violations were mounting, and Chief Justice John G. Roberts, Jr. brushed aside calls for reform, arguing against all evidence that judges could control themselves.
A disturbing outcome for our democracy is a court with more power and less legitimacy. According to a recent NBC News poll, public opinion of the justices remains at an all-time low, with less than a third of American voters positive about the Supreme Court.
The judges are off to summer vacation with their families, or perhaps their beloved right-wing billionaires—who knows, given that Clarence Thomas and Samuel Alito failed to disclose such entertainment? — but the trial will remain in the headlines. Next Thursday, the Democratic-controlled Senate Judiciary Committee plans to vote on reforms to the Supreme Court that have gained support thanks to inadvertent bailouts from judges. The legislation will require the court to set out a code of conduct, create a lower court to hear ethics complaints against judges, and toughen federal laws governing their financial disclosures and recusals in cases of conflict of interest.
The bill will not take into account calls by progressives to expand the composition of the court to weaken the influence of conservatives – a bad idea that only further politicizes the institution (as President Joe Biden claims). The bill also does not include a term limit for judges—a much better idea, especially given the practice of Republican presidents choosing relatively young candidates who can stay on the court for decades, although that may require constitutional amendments.
“Because the Court will not act, Congress will,” Senator Richard Durbin of Illinois, chairman of the Judiciary Committee, and Sheldon Whitehouse of Rhode Island said in a joint statement.
Tough talk, but the measure will not become law. Republicans will take care of it either by filibustering in the Senate or by burial in the Republican Party controlled House of Representatives.
“This is no ordinary trial,” Biden said recently. He later added that he “did more to expose fundamental rights and fundamental decisions than any court in recent history.”
Fact Check: True.
On the heels of last year’s historic rulings that overturned precedents on abortion, gun rights, and separation of church and state, recent conservative decisions have further undermined the power of federal agencies, stripping wetland protection and canceling college debt relief for millions of Americans. The ominous fact is that in taking on Biden’s college debt relief program and the web designer’s proposal to deny service to same-sex couples, the court has opened its doors to other plaintiffs with questionable legal status who appear to share the conservative agenda.
After decades of denouncing judicial activism, Republicans are celebrating the Supreme Court, which has taken activism to a whole new level. And what makes the court’s takeover and lack of ethical accountability all the more troubling is that judges, unlike major players in our other branches of government, are not elected and serve for life. Their decisions cannot be challenged either legally or politically.
As Judge Elena Kagan wrote in a Liberal dissent from Roberts’ view of college debt: “At the direction of the party, which is unaffected, the majority decides the contested issue of public policy, duly belonging to the politically accountable branches and the people they represent.” “. She called it “a danger to the democratic order.”
To which the prickly Roberts snorted, “Some recent opinions have become alarmingly critical of decisions they disagree with as going beyond the proper role of the judiciary.”
However, the term’s most arrogant act was not the ruling; it was Roberts’ dismissive refusal of Durbin’s invitation to testify on judicial ethics and reform. No concern about separation of powers or precedent stopped Roberts from stepping down from the bench to provide much-needed transparency, humility and responsiveness to a concerned public.
But instead, Roberts sent back a predictably dismissive reply: “I must respectfully decline your invitation.”
In other words, he reigns supreme.
Jackie Culms is a columnist for the Los Angeles Times.