The Out-of-Control Supreme Court

During my time in junior high school, I remember the complaints of Republicans that the Supreme Court was in the disreputable habit of “legislating from the bench.” Of course, their problem was not with “legislating” but with handing down decisions they just didn’t like, however legally justified they might be. Most especially, they railed against Brown v. Board of Education, the famous desegregation case. The court found that the Constitution logically did not permit racial segregation in conspicuously unequal public schools. Ironically, although the Warren court declared unconstitutional the long-held notion of “separate but equal”—the equal part never seemed to be achieved in practice—it failed to “legislate,” in the sense of declaring what was to be done to eliminate the unequal treatment of Negro students in Topeka schools.

Whereas the basic task of the Supreme Court is to decide what is legal and what is not, even a relatively liberal court is not about defining its own fix for what it believes is illegal. In Roe v. Wade, for example, the court need not have invented its own trimester scheme for determining when abortion is permissible. Having ascertained that the Constitution does not allow an outright abortion ban, the court could have left many details to the legislative branch.

Today, Republicans are delighted that the radically “conservative” Supreme Court engineered by Donald Trump gleefully legislates from the bench when it suites the proclivities of the most reactionary justices. In Trump v. Anderson, the court was asked whether Colorado could remove Donald Trump from a Republican primary ballot based on Section 3 of the Fourteenth Amendment, that is, did Trump’s involvement in an insurrection prevent him from holding public office. Unsurprisingly, the court held that an individual state cannot use the Fourteenth Amendment to disqualify a candidate for federal office. The court further held, however, that only Congress, not the courts, could apply Section 3. The practical effect was to invalidate that section of the Constitution for the foreseeable future.

Now the Supreme Court is considering whether Donald Trump, a former president, can be held legally accountable for actual crimes committed while in office. That the court even granted certiorari for this case is outrageous; the president is not a king, and the Constitution establishes a republic, not a monarchy. Whereas it is unlikely that even this Republican-dominated court will agree with the Trump legal team that a president may even murder his political rivals with impunity, the justices are trying hard to delay a decision (and therefore a trial). The justices failed to put the trial on a fast track, seemed almost indifferent in oral arguments to the matter actually before them, and is worried about crafting a judgment “for the ages.” That the nation is facing the question at issue for the first time in more than two and a quarter centuries suggests that a decision “for the ages” is not an urgent need. But the court is happy to legislate, particularly if it is helpful to their political consigliere Donald Trump.

It is past time to reform the Supreme Court. Justice Thomas refuses to recuse himself on a case involving the January 6 insurrection, even though his wife was a cheerleader for that mutiny. Both Thomas and Justice Alito have received substantial gifts from wealthy Republicans who applaud and benefit from the rightward movement of the court. Although President Biden requested a commission report on court reform, nothing came of the report. It is perfectly clear that the framers of the Constitution did not anticipate that the direction of the country would be set not by Congress and the president, but by the Supreme Court. It is time to fix the court and, therefore, the Republic.