U.S. Supreme Court is Off the Rails

The Supreme Court has Gone Off the Rails

by Joel D. Joseph, author of Black Mondays:

Worst Decisions of the Supreme Court

I wrote the first edition of Black Mondays in 1987, twenty-five years ago. The court was quite different then than it is now. Even though seven of the nine justices in 1987 were appointed by Republican presidents, the court was still quite moderate. Thurgood Marshall, appointed by Lyndon Johnson, and Byron White appointed by John F. Kennedy, were the only justices appointed by Democratic presidents on the court in 1987. William Brennan and John Paul Stevens, appointed by presidents Eisenhower and Ford, respectively, turned out to be very liberal. Sandra Day O'Connor, appointed by President Reagan, was moderate, as was Anthony Kennedy, also appointed by President Reagan.

Now the court is packed with far-right extremists, three appointed by disgraced, twice-impeached, one-term President Donald Trump. Many commentators have claimed that the Dobbs case overturning Roe v. Wade was the only time the Supreme Court took away citizen's rights. This is not true. The court took away consumer's rights when it ruled that the Federal Arbitration Act allowed corporations to take away the right to bring a civil case and have a jury trial. The court has also taken away the right of citizens in mostly Southern states to have access to the ballot box when it ruled that the Voting Rights Act was no longer valid. It also took away the right to breathe clean air when it ruled that the Environmental Protection Agency did not have the authority to regulate carbon dioxide emissions. The court has undermined the principal of "one man, one vote" by effectively overturning cases that had allowed citizens to challenge redistricting.

During the past two years I have been researching the Israeli Supreme Court. Israel gives its citizens broad access to the judicial system that our Supreme Court does not. The U.S. Supreme Court has exceptionally strict standing rules therefore closing the courthouse door on many litigants. It also has ruled that citizens cannot challenge gerrymandering in federal court (but allows challenges to gerrymandering in state court.) This makes no sense. In addition, the court has allowed badly gerrymandered districts to stay that way, tilting elections and depriving citizens of "one man, one vote."

Israel requires all judges to retire at age 70. This provides for more turnover on the bench and effectively sets term limits. Life expectancy was about 40 year of age when the U.S. Constitution was written life more than 200 years ago. Now with life tenure, we may be stuck with Justice Amy Coney Barrett for 30 or more years. We have been burdened with Justice Clarence Thomas for more than 30 years. It is time to implement constitutional changes to the court. We could fix the term of judges at 12 years, and also impose a mandatory retirement age of 75. This would prevent judges appointed by rogue presidents like Donald Trump from having an outsized influence on the judiciary.

We now have the worst Supreme Court in my lifetime. Fifty years in the future historians will look back at the gun control cases, gerrymandering, abortion, Bush v. Gore and Citizens United cases as aberrations, mistakes and worse. Bush v. Gore was a judicial coup d'etat where the Supreme Court, on a purely political basis, overturned the Florida Supreme Court and installed George W. Bush as president, even though all the votes had not yet been counted, and George W. Bush did not win a majority of the popular vote. The Supreme Court never should have taken that case and should have allowed Florida to finish counting its ballots.

In the last term alone, the Court overturned Roe v. Wade, overruled a New York law that restricting carrying weapons without a permit and ruled that the Environmental Protection Agency was not allowed to implement regulations limiting power plant emissions. We have an exceptionally activist and regressive court that has no respect for stare decisis, for Congress or for the states.

By overturning Roe v. Wade, the Supreme Court over-ruled nearly 50 years of precedents. The three Trump-appointed justices, who all promised in their confirmation hearings, to respect stare decisis, reneged on their promises. They lied. Under oath. Stare decisis is a legal principle by which judges are bound by precedents. In Latin stare decisis means "to stand with the-things-that-have-been-decided."

The New York gun control law was in effect for more than 100 years. The court's timing was ironic as the murder rate nationwide from guns has spiraled out of control. I must add that the court, in an earlier term, overturned a California law that limited the sale of violent video games to children. Only an idiot would consider that violent video games are harmless. Many of the mass murderers of the past decade were young men addicted to violent video games. Similarly, global warming is a scientific fact of life, and the Supreme Court's overturning of EPA's reasonable regulation of coal-fueled power plants mocks those who believe that man has created global warming.