A 6-3 conservative supermajority has really put the “supreme” in “Supreme Court,” and not in a good way.
The court’s major rulings in the term that just ended continued to defy precedents and expand its power versus the president and Congress. All the while, reports of justices’ ethical transgressions mounted, and Chief Justice John G. Roberts Jr. gave the back of his hand to calls for reform, claiming against all evidence that the justices can police themselves.
The worrisome result for our democracy is a court with more power and less legitimacy. The public’s opinion of the justices remains at an all-time low, with less than a third of American voters having positive views of the Supreme Court, according to a recent NBC News poll.
The justices have dashed off for their summer breaks with their families or perhaps their favorite right-wing billionaires — who knows which, given Clarence Thomas and Samuel Alito’s failures to disclose such junkets? — but the court will remain in the headlines. Next Thursday, the Democratic-controlled Senate Judiciary Committee plans to vote on Supreme Court reforms that have gained support with the justices’ inadvertent help. The legislation would require the court to spell out a code of conduct, create a lower court to review ethics complaints against the justices and tighten federal laws governing their financial disclosures and recusals from cases presenting conflicts of interest.
The bill would not heed progressives’ calls to expand the court to dilute conservatives’ sway — a bad idea that would only further politicize the institution (as President Joe Biden argues). Nor does the bill include term limits for justices — a much better idea, especially given Republican presidents’ practice of choosing relatively young nominees who can stay on the bench for decades, though it could require amending the Constitution.
“Since the Court won’t act, Congress will,” Sens. Richard Durbin of Illinois, the Judiciary Committee chair, and Sheldon Whitehouse of Rhode Island said in a joint statement.
Tough talk, but the measure won’t become law. Republicans will see to that by either filibuster in the Senate or burial in the GOP-controlled House.
“This is not a normal court,” Biden said recently. It has, he added later, “done more to unravel basic rights and basic decisions than any court in recent history.”
Fact check: True.
Following last year’s landmark rulings overturning precedents on abortion, gun rights and separation of church and state, the conservatives’ latest decisions further undermined federal agencies’ power, gutting wetland protections and reversing college debt relief for millions of Americans. Ominously, by taking cases on Biden’s college debt program and a web designer’s bid to refuse service to same-sex couples, the court threw open its doors to other plaintiffs of dubious legal standing who happen to share the conservatives’ agenda.
After decades of decrying judicial activism, Republicans are celebrating a Supreme Court that has taken activism to a whole new level. And what makes the court’s power grabs and lack of ethical accountability all the more objectionable is that the justices, unlike the major players in our other branches of government, are unelected and life-tenured. Their decisions can’t be appealed, legally or politically.
As Justice Elena Kagan wrote in the liberals’ dissent from Roberts’ college debt opinion: “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.” She called that “a danger to a democratic order.”
To which the prickly Roberts harrumphed: “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”
The most arrogant act of the term, however, wasn’t a ruling; it was Roberts’ dismissive rejection of Durbin’s invitation to testify about court ethics and reforms. No separation-of-powers concern or precedent prevented Roberts from coming down from his bench to provide some much-needed transparency, humility and responsiveness to a troubled public.
But Roberts instead sent a predictably dismissive reply: “I must respectfully decline your invitation.”
In other words, he reigns supreme.
Jackie Calmes is a columnist for the Los Angeles Times.
