When Ruth Bader Ginsburg passed away on September 18, 2020, it created a coveted vacancy in the US Supreme Court. Ginsburg was a well-known litigator and judge. She also served as a Court Justice for 27 years.
President Donald Trump quickly announced Amy Coney Barrett as her replacement. This caused a furor online due to Barrett’s decidedly conservative learnings, in stark contrast to Ginsburg’s liberal inclinations.
As expected, the Republican Senate put her confirmation on the fast track. The hearings were, shall I say, pretty tame compared to Brett Kavanaugh’s.🤔
Mild as it was, the furor surrounding Judge Barrett enticed me to write this piece. It’s too rich a subject to ignore.
Supreme Court of the United States
I’m not writing this article with the template of partisan politics. Granted, said politics play a role in Supreme Court Justice selections and confirmation hearings.
They also play a role in predicting how each Justice will vote on particular cases (even though, in theory, that’s not how it’s supposed to be).
For people living outside the US, who may be feeling lost, I’ll explain this as succinctly as I can.
The United States Supreme Court is the most powerful court in the country. If there’s a disputed case or lawsuit in the lower courts, the Court has the option of taking it up and making a final ruling.
If they choose not to review the case, then the lower court’s ruling stands.
The Supreme Court, made up of nine judges (or “Justices”), has the final, ultimate say which cannot be disputed. Their rulings create a precedent for any and all future similar cases (we call this “stare decisis”, meaning “let the decision stand”).
Their purpose is to determine whether a law (or application of said law) adheres to the Constitution. (i.e. “Is this law what the Founders wanted?” “Would the Founders be cool with this?”)
The Court has the authority to strike down an existing law if it’s deemed “unconstitutional.”
In theory, the Court Justices are supposed to be unbiased and impartial so as to make fair rulings.
That’s Just a Theory, A POLITICAL Theory.
What I’ve learned about political theories, over the years, is they NEVER take the human condition into account.
For example: Socialism.
Socialists believe workers should own the means of production and enjoy the comforts of democratic workplaces.
But practically speaking, workplaces can’t function as democracies. Some workers are simply more driven than others. Others are more personable and charismatic. Some are more willing to work harder and put in the extra hours.
Workers, for the most part, are simply not interested in having an equal stake in the day-to-day operations of a business.
It’s the human condition in play here.
So, that’s that about the blindspots of theories in a general sense.
Origins of the Supreme Court
Back to the Constitutional Republic envisioned by Jefferson, Hamilton, and all the others. They figured that the best way to preclude the onset of tyranny in government was to institute “checks and balances.”
Basically, no person in our government can have most of the power, let alone all of the power.
The President has some power, Congress (the legislators) has some, and so too, do the courts.
No branch can act without the approval or “check” of the other Branches. Checks and balances. Not one person is allowed to be King.
I’ve been rambling, sorry. But I think some context was in order.
HERE ENDETH THE CIVICS LESSON. TIME FOR THE OP-ED.
No Justice, No Peace
While the Constitution’s drafters had the right ideas in mind regarding the Judicial branch, they didn’t consider that judges are humans, too. Humans tend to make decisions based on their emotions, not logic.
In a perfect world, you’d have a group of legal scholars that fully understands and supports the country’s founding document.
But guess what?
Ideologues, like lawyers, distort the law to get what they want. Look at Christianity and the Bible. Why was there a schism between Protestants and Catholics?
Or between Sunnis and Shias in Islam?
There were differing interpretations of what was written.
You could assert there is one, objective interpretation of the document when it was initially written, sure. But aren’t you every bit as biased as the person disagreeing with you?
It’s a tough call to make, and at the end of the day, you’re really going along with the dictates of your own conscious.
And Justices like Ginsburg and Scalia were doing precisely that: Making rulings based on their personal politics.
In fact, you could predict their opinions based on the case (gay marriage, abortion, etc.). Even though that completely goes against the founding principle of the Supreme Court.
People are people. They can’t be trusted to make decisions that are fair and unbiased. Another feature of the Branch that the Founders overlooked is the selection process for the Justices.
In contrast to the democratic elections of the President and members of Congress, the people have no direct say in who the Justices will be.
Instead, they’re hand-picked by the sitting President and confirmed by the Senate.
Where is the people’s say in all of this?
To make matters worse, these Justices have no term limits.
In contrast to the President, Justices are lifetime appointments. They can literally serve until the day they die. Or if they feel like hanging up their robe and calling it a day.
Think it can’t get worse or more tyrannical? Think again. Justices are also not hindered by re-elections.
In contrast to the members of Congress, Justices do not have to worry about someone else showing up and snatching the position out from under their noses.
The writers of the Constitution, overall, did a fair job creating a government for the common people. We get to have a say while submitting to a fair degree of centralized power.
Overall, it did a fair job in smiting the prospect of tyranny and dictatorships.
But if there’s an entire Branch of our government that is not being checked with either term limits or being voted out, how is that not tyranny?
Stephen G. Calabresi, a Professor at Yale Law School, argued that Justices should be given term limits of 18 years. No ifs, ands, or buts. 18 years, that’s all they’re getting, then it’s sayonara, time for a replacement!
18 years is the same amount of time served by a three-term Senator and nine-term Representative.
The prescription, while sound, doesn’t address the OTHER issue with the Branch entirely: the low quantity of voices and votes.
When we look at academic studies providing samples, we want to know the sample size to gauge its reliablity. A small sample size doesn’t inspire much confidence.
The same principle applies to elections. If only nine people voted for a candidate (five being the majority), how can we know the right candidate was selected?
How can we know for sure the right decision was made with nine people? With nine votes? And the majority only being five?
If 50 different people with different life experiences, knowledge, and viewpoints voted ‘yes’ on an issue, I’d be more likely to accept the results.
And that brings me to my proposal: Instead of sending a disputed verdict to a Court that the citizens have no electoral control over, why don’t we send the issue to a electoral body consisting of all 50 state Governors?
In this system, the Governors would have their staffers/clerks review the pertinent info for each disputed case.
The Governor will get a dossier of all the relevant information. They’d make a ruling based on their political philosphy, in the same way a Justice would.
50 votes is much better than 9.
The Governor wouldn’t need to leave the State Capitol and fmake a fancy speech in Washington D.C. In today’s world, they could simply send their vote digitally.
A middleman in D.C. would then tally the votes cast by all 50 Governors.
In the case of a 25-25 tie, the Vice President can cast the tie-breaker in the same way they do for a 50-50 tie in the Senate.
Not only is 50 votes better, but these are votes where the average citizen has a direct influence. You can vote out a Governor, but you can’t vote out a Justice.
50 votes makes for a more balanced ruling. Voting out a Governor quells the stench of an undemocratic dictatorship.
What do you guys think? Should the Judicial Branch stay or be changed? If you think it needs to change, what is your proposed solution? Comment below!