It’s hard not to blame the Supreme Court for a huge chunk of the nightmare we’re currently experiencing.
The Supreme Court is supposed to decide whether laws and government actions follow the Constitution. It is also supposed to interpret laws that Congress passes to decide if they are being carried out correctly.
Republicans have sought to prevent the Court from executing these and other functions when Court decisions would undermine executing their agenda. They have done so by establishing strict ideological tests for potential nominees and, whenever possible, blocking the confirmation of Justices that Democratic presidents nominate. The Justices that Republican presidents appointed have resorted to questionable interpretations of the Constitution, thereby producing decisions that align with the Republican agenda, sometimes overturning decades-long precedents.
Currently conservatives hold a strong majority on the Bench. The two Presidents Bush appointed John Roberts, Samuel Alito, and Clarence Thomas. Trump appointed Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Obama appointed Sonia Sotomayor and Elena Kagan. Biden appointed Ketanji Brown Jackson.
The Federalist Society and the Heritage Foundation play a central role in selecting conservative justices. Both organizations provided Trump with a list of potential nominees to the Supreme Court. All six current conservative Supreme Court Justices have ties to the Federalist Society. In many cases, the failure of the Supreme Court to uphold the Constitution was caused by these two organizations.
In recent years, the Court overturned Roe v. Wade. It also gave the President wide but not absolute immunity from criminal prosecution for actions in office.
Thanks to Trump’s almost unchecked immunity, he initiated military operations without consulting Congress and deployed National Guard troops to several cities across the country without consulting the governors of the states involved. He tore down the East Wing of the White House and took over the Kennedy Center, adding his name to it, without going through proper channels.
Congress has failed to step up to the plate. Despite private misgivings, congressional Republicans have acquiesced to the President’s authoritarian power grab. (More on Congress’s failures in a future column.)
The Supreme Court ruled that federal prosecutors overreached when they used an obstruction law against January 6 rioters. It has also dismantled some federal administrative laws such as environmental protection regulations. It struck down a ban on federal bump stock devices for guns. And it stated that race-based university admission policies at Harvard and the University of North Carolina could no longer be used, upending decades of so-called affirmative action.
The Court also intervened in cases involving the Trump administration’s efforts to control independent agencies which many claimed was a major overreach.
Given the importance and ripple effect of the case regarding the President’s authority to levy tariffs (under the Constitution only the Congress can impose a tax), the Court has been disappointingly slow in issuing a decision.
More than 50 percent of Americans disapprove of the Supreme Court’s job performance. Americans view the courts decisions as political rather than focused on interpretations of the law, with many viewing the Court as having a far-right agenda. Plus, scandals around undisclosed luxury travel and gifts accepted by justices, coupled with controversial rulings, have significantly damaged public trust. (Clarence Thomas took numerous undisclosed trips, funded by Republican billionaire Harlan Crowe, involving private jets, yachts, and expensive resorts. Samuel Alito flew an upside-down flag outside his Virginia home, a symbol of the effort to block certification of the 2020 presidential election results.)
So, how can this situation be rectified? An ideal but unrealistic answer would be for Presidents to select Supreme Court justices based on their competency, experience, and commitment to the Constitution. Because this now seems like a pipe dream, immediate reforms are needed.
There have been serious calls for structural change including term limits. The Center for American Progress advocates for 18-year term limits to prevent justices from holding power for life and to make the appointment process more predictable.
Some propose court expansion to balance the ideological tilt, though this is seen as highly controversial, and some see it as a threat to long-term stability. I agree.
There are also calls for legislative checks that would allow Congress to use its power to limit the Court’s authority on certain issues or to override specific interpretations of federal law.
Last year, the Court released a code of conduct, but there currently are no enforcement mechanisms.
The framers of the Constitution created the Supreme Court as an important part of the system of checks and balances that are essential to our freedom. The Supreme Court is meant to serve the people, not the partisan interests of presidents who nominate individual justices or senators who vote to approve them.
Chief Justice John Roberts once wrote, “I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.”
These words have not been followed with actions. Mr. Chief Justice, you, and some of your colleagues, have let the country down. We are far from a country with endless possibilities for all Americans. Your failures are a major disappointment and, much more seriously, have jeopardized our democracy.
Maria Grant, formerly the principal-in-charge of the federal human capital practice of an international consulting firm, now focuses on writing, reading, music, bicycling, and nature.
Bob Kopec says
John Roberts has failed miserably. He allowed trump, a corrupt, raping, lying, murdering, treasonous insurectionist to be seated in the WH. Trump went insane with power, murdering 100s in boats at sea, bombing 6 countries, invading another for oil, threatening Iran, Canada, Denmark, Mexico. Trump’s masked thugs killed 3 innocent citizens (so far), beat others, broke into cars & homes. Trump has brought 1935 Nazi Germany to the US. He is threatening to cancel mid-term elections. Trump has changed the Justice Dept. into his personal Dept. of Revenge. The John Roberts Supreme Court will be remembered in history as the worst.
Maria Grant says
Bob, thanks for your comments. I agree. It’s very sad.
Marc Ebersberger says
This is why I refer to the court as the “Supine Supremes.” They seem to deliberately misinterpret the Constitution to support their political agendas and should be subject to the ethics code that all civil servants must adhere to. The influence of so called think tanks like the Heritage Foundation needs to be curtailed. It has become the asylum for has been politicians and discredited philosophers.
Maria Grant says
Marc, thanks for your comments. Love the term “Supine Supremes.”
John Fischer says
Your swipe at Republican legislators is justified, Ms. Grant, but I think your attack on the Supreme Court is a bridge too far.
Maria Grant says
John, thanks for writing. Let’s agree to disagree.
Joyce Stambaugh says
So well expressed! It is so difficult not to be sad at the present state of the direction of our current leadership. Thank you for your objective view.
Maria Grant says
Thanks Joyce.
Jeff Staley says
Maria, You have given us an amazing piece of prose regarding our incredibly important Supreme, but under-performing, Court. That a collection of intelligent and experienced citizens should choose to help such a despicable and unintelligent President is beyond my comprehension. Apparently, the glittering gifts and compensations offered by billionaires with selfish intentions is enough to sway even them to give away our precious freedoms of speech and control of our bodies (Roe v Wade). The issue of how much immigration from where and how has haunted our weak-kneed politicians since before I was in High School more than 50 years ago. The lure of cheap labor for a growing country has always overcome fears of accepting those with different skin colors and cultures. The short-sighted and ignorant Trump administration has seized upon the idea of ridding America of our valuable immigrant populations despite the undeniable contributions they have made to our intellectual and economic growth. Our current unemployment rate is so low that every American able to work can find a job. Loss of our immigrant population will leave us short-handed and unable to continue operating many current businesses. Economic growth will decline, some products and services will become unavailable and America will be worse off. I find it most ironic that every single human being in America is a descendant of an immigrant, yet we currently choose to despise new immigrants. Human beings did not originate in North America.
Maria Grant says
Jeff, thanks so much for your substantive comment. Much appreciated.
Bob Kopec says
Thank you Maria!
I have felt that Mr Roberts, who I met at my friends home (who just happened to be John Roberts’ room mate at Harvard Law) when Mr. Roberts was still a federal judge has been negligent and complicit in Trump’s egregious actions.
Mr. Roberts elevated the level at which corruption is measured somewhere beyond that of a $400 million Qatari jet plane that Trump is authorized to keep after his term hopefully ends (as he has threatened to stay in power regardless of term limits.
I find it difficult to understand how Mr. Roberts in good conscience could swear into the presidency Trump, a known treasonous insurrectionist who assembled a mob of armed cohorts on 1/6/21, where 5 people were murdered in an effort to retain his presidency based on nothing but endless lies. And, Trump pardoned all those convicted of any 1/6/21 crime in addition to pardoning hundreds more criminals.
And to date, under Trump’s policies (canceling U.S.A.I.D.) & actions (killing 115 people in boats in the ocean, bombing 7 countries, invading 1 country to seize their oil) thousands more have died. Trump’s ICE force is responsible for at least 38 deaths including 3 innocent American citizens, tear gassing of children, capturing and placing several children in ICE detention warehouses, breaking into homes & vehicles, beating innocent people.
Trump has brought 1935 Nazi Germany to 2026 Trump America.
There are still Trump’s plans to seize Greenland from Denmark by force if necessary, invade or bomb Iran, cancel mid-term elections, and other ideas that only someone insane could think of.
Who or what with stop the madman in the White House?
Certainly not the John Roberts Supreme Court.
Maria Grant says
Bob, thanks for writing. I agree it’s a sad state of affairs.
Debra Sawyer says
How one sided was this article? Roe vs Wade was always at risk. You can go to one of the death states and get as many abortions as you want. This was always a state issue.
David Taylor says
So you are more qualified to interpret what is constitutional than 9 Justices educated at the best and most respected law schools in the country? Wow, what hubris.
By the way, having the President appoint Supreme Court Justices is not consistent with the separation of powers doctrine.
Mickey Terrone says
Hi Maria. Excellent, thought-provoking article. The thought it provoked with me is that the Roberts and his 5 Heritage Society mates are mindful of the role they are playing in the ending of the American democratic republic in favor of the new oligarchy that is currently well underway. Roberts, et al, continue to offer lip service to the constitution as they undermine everything spelled out in the constitution to limit the power of the Chief Executive. Do you believe Roberts doesn’t know what he’s doing, along with Thomas, Alito, Kavanaugh. Gorsuch and Barrett? These are all very smart people who fully grasp they are looking the other way on the abuse of power of the Chief Executive. This is no mistake. They are perpetrating this in much the same was as congressional Republicans in both houses just look the other way and put no check or balance against Trump’s clear excesses of power.
This is the environment of a perfect storm to overwhelm the delicate balance of a tricameral government. They are all accomplices in their crimes against the US Constitution and American democratic republic. Don’t hold your breath waiting for these sharks to decide that Trump has gone too far. They are integral parts of the threat.
Maria Grant says
Mickey, thanks so much for writing. Always great to hear from you. I would love to hear your advice for specific action steps that need to be taken to stem this tide (other than, of course, voting in November, assuming Trump doesn’t so-called “federalize” the election). Again thanks.
Mickey Terrone says
Hi again Maria. Action steps? My advice would be to move to your favorite European country, where democracy, however imperfect still exists.
In lieu of that, I believe Americans can very publicly confront the Chief Justice and his Heritage Society zombie comrades on how they are abandoning their oaths to the US Constitution and challenge why they should be allowed to remain in their jobs. Without a hard legal background, most Americans probably can’t understand or express in detail how (in a strictly legal sense) the radicalized justices look the other way in stretching the powers of the president to be able to commit crimes so long as they are in the president’s official duties as chief executive. I think the founding fathers are currently rolling over in their graves, especially John Marshall.
Given Trump’s horrendous abuse of the Emoluments Clause, I think Roberts, et al, should be challenged for having failed to uphold the constitution which they are sworn to uphold. Intense public pressure and constant demonstrations against them may be the only means of a) exposing and embarrassing them and b) educating the public about how they are aiding and abetting Trump’s overthrow of our American democratic republic.
I think Justices Jackson, Kagan and Sotomayor have articulated their deep concerns about the propriety and integrity of their associates on the court, but they can only go so far. SCOTUS retirees I suppose are also limited in what they can say, but other strong legal minds are not.
The Roberts Court is stinking it up with what I consider their awfully high batting average supporting Trump’s gross excesses. They are no less dangerous to the future of freedom in our country than the Republican legislators in both houses of Congress who bow to Trump’s demands. Yet the court’s actions (or the lack thereof) usually dissipate soon after their ignominious decisions are announced as Trump uses his “Shadow Docket” as his authoritarian rubber stamp as a racketeer would use extortion. It may be true that Roberts, Thomas, Alito, Gorsuch, Barrett and Kavanaugh receive the same kind of death threats that Republicans in Congress receive when they publicly challenge Trump. I doubt this would apply to Thomas. I think he probably fears crossing Ginni even more.
From a wider perspective, Democrats nationwide should probably challenge Republican legislators on the state and local levels to come out against authoritarianism and fascist legislative initiatives as a way to force respect for the constitutional basis of our laws and freedom as Americans. Republicans’ numerous state level challenges to voting rights and civil rights, at this point, require a strong defense in anticipation of further erosion as a protection against a full eventual collapse of individual freedom in an authoritarian, fascist state. Republican state legislators largely fly under the radar on national issues, but they heavily influence their district rank and file Republicans who, like former Attorney General Bill Barr, who utterly demolished Trump’s lack of personal character and integrity but STILL claimed he would vote for him as the only alternative to voting for a Democrat. Of all this utterly disingenuous charlatan’s arrogant comments made during his term as USAG, this reeks most sickeningly in his contempt for American democracy. This is aiding and abetting the awful malignancy that is Donald Trump and authoritarian Trumpism. Yet, this is how state level Republican legislators quietly support Trump’s excesses without being challenged publicly.
So, in review, 1) Intense public pressure on SCOTUS justices for their failure to preserve and protect the constitution. Regular demonstrations in front of the building. While past SCOTUS majorities have leaned somewhat left or right in past decades, this group of six is ideologically further down the road toward authoritarianism than Trump himself, IMHO. 1a) High public focus on Trump’s illegal excesses of the Emoluments Clause and his SCOTUS-given license to criminal and unconstitutional acts in office. 2) Challenging US, state and local level Republican office seekers on their allegiance to the constitution and not to an individual. Re they anti-fascist or pro-fascist? This might force them publicly to espouse Trump or not. On the Eastern Shore, concentrate on state legislators’ support of Andy Harris and Harris’ subservience to Trump. 3) Secure strong candidates to oppose Republican candidates. 4) Run this campaign with consistency, urgently, loudly and proudly, as patriots in America’s 250th celebration of our democratic republic, which is so close to collapse from an authoritarian minority abetted by a deluded Republican voting base.
Well, you asked.
Maria Grant says
Mickey, thanks for your recommendations on what to do next. So appreciated. All great ideas.
Robert Rietz says
Supreme Court Justices are just politicians in robes. Nothing more, nothing less.