Make Believe: Most of us have a respectful view of the highest court in America, The Supreme Court. Our respect, however, is for the most part based on a high degree of idealization. The actual history of the court is a lot more complicated and interesting than meets the eye. It’s loaded with power plays, law school dropouts, and attempted impeachments.
Most conservative justices or recent nominees like Amy Coney Barrett, cover-up historical reality by appealing to the original public meaning that legal texts or the constitution would have had at the time that it became law. This interpretation or doctrine is referred to as “Originalism” in constitutional interpretation.
The ‘original constitution’, however, lacked many of the key amendments that we prize today: for example, the right to vote for women, and the abolition of slavery. Thirty-three constitutional amendments were proposed, and 27 ratified; over 11,770 proposals to amend the constitution have been introduced in Congress during the life of the constitution. It is, to say the least, an evolving document.
Judge Richard Posner, one of the most cited legal scholars of our time, remarked that following the Constitution does not mean adhering to its text but instead responding to interpretations of that text. Constitutional law is made by judges and is much more about creating rules that make sense today than interpreting an old and often obsolete document.
Judge Posner commented further: “If you look at the entire body of constitutional law, that body of law bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868. That’s the reality. The only useful way to advocate with regard to constitutional law is to give a good contemporary argument for or against a particular point of view or interpretation”.
Beliefs in original texts and interpretations of the constitution are the equivalent of arguing that God wrote the Bible, and it must be interpreted literally.
Ms. Barrett, nominated to the Supreme Court by President Trump, has more personal reasons to deny history: her experience includes a whopping three years on the Federal bench, the publicly stated belief that fetuses are children, (which is biologically misleading), and finally, the reasonable test of her aptitude. She graduated top of her class from Notre Dame Law School, which failed to score in the top 20 law schools in America.
Perhaps her confirmation will lead to new standards of historical qualifications on the court which include breathing, showing up, basic reading and writing skills, working knowledge of 12th-grade science and a commitment to base case decisions on the politics and whims of the President who made the appointment.
Historical Reality:
Individuals create institutions, and institutions are historical entities to their core. President George Washington, for example, set up the first Supreme Court and decided that it would be comprised of six justices until death or retirement. Washington’s choice of six justices and length of service were arbitrary. Several of the original justices that he nominated, in fact, declined to serve; they had better ways to spend their time. The actual number of Supreme Court Justices over the years has gone from a low of 5 to a high of 10; in 1869 it was set at 9. However, Congress can change the number of justices at any time.
The Supreme Court was formally established in Article 3 of the U.S. Constitution, 1789. Interestingly, for those plagued by the doctrine of originalism, the Constitution is silent on the citizenship and residency requirements of a Supreme Court justice. Six Supreme Court justices were born outside of the U.S. in countries as diverse as Scotland, Turkey, England, Ireland and Austria. Given all the conservative prattle about nationalism today, one can hardly imagine a foreign-born nominee appointed to the court.
There is also no stipulation that a law degree is a prerequisite to becoming a Supreme Court justice. If President Trump had known this, he might have nominated Kanye West, which would have demonstrated his commitment to diversity.
Open political struggles with the court have occurred over the years. Justice Samuel Chase, for instance, was charged with 8 articles of impeachment, led by Thomas Jefferson in 1805. The charges stemmed from ‘improper politically motivated behavior’. Chase’s conservatism and overreach off the bench drove Jefferson nuts. The Senate deliberated for 22 days and acquitted him; he remained on the bench for 25 years. Why Jefferson didn’t propose a duel to take care of the matter, only history knows.
America is big on second chances. George Sutherland attended the University of Michigan law school and dropped out. Mr. Sutherland, having faith in his aptitude, took the requisite tests and was admitted to the bar in 1883. He practiced law with his dad in a small office in Utah. Warren Harding nominated him to the Supreme Court for his Republican and hyper-conservative views in 1922.
Sutherland later became an active opponent of President Roosevelt’s New Deal. He was part of the “Four Horseman”, a group of conservative justices that often voted to strike down New Deal legislation. He also authored the noteworthy case that determined that Indian Sikhs, although listed as Caucasians, were not white within the meaning of the Naturalization Act of 1790 and therefore, were ineligible for naturalized American Citizenship.
Where To From Here? The Supreme Court, like any institution, has a mixed history. Its early days were characterized by a bunch of white men writing laws to primarily protect property rights, including slavery. The court over the years has generally expressed legal opinions that have been clearly pro-slavery, anti-women, anti-labor, and as recently as 1944, anti-immigrant, approving the legality of internment camps for Japanese-Americans.
On the other hand, we saw landmark opinions on freedom of speech and press in the 1930’s; the Earl Warren court gave us Brown vs. Board of Education, ending school segregation, and Miranda rights in the face of police, in the 1950’s and 1960’s. We’ve also had the benefit of Roe vs. Wade enhancing women’s right to choose, legalizing abortion, and far- reaching legal support for same-sex marriage and LGBTQ rights.
However, the current Supreme Court is packed not only with conservative justices but justices that border on being ideologues, showing uniformity of politically informed opinions and writings on complex matters.
With the recent death Justice Ruth Bader Ginsburg, Justices Clarence Thomas and Samuel Alito have issued a broadside attack against the court’s ruling in 2015 when it declared that same-sex couples have a constitutional right to marry under the 14th Amendment which guarantees equal protection of the law.
It is likely, in the days ahead, that we will see a very conservative court with ultra-conservative decisions on all matters affecting us as citizens, perhaps under the guise of ‘originalism’. There are several actions to consider going forward: (1) increasing the number of liberal justices to balance the ideologues on the court. This will create a backlash of appointments, depending on who the next president is, but maybe worth pursuing anyway to limit the damage of opinions and (2) limit the number of years a justice can serve to no more than 25 years or six presidential terms.
This will increase the opportunities for new ideas and exchanges and laws that reflect the American landscape accurately. After all, the length of time that judges serve was the arbitrary choice of the first president of the U.S., George Washington. It is maybe time for a change.