At What Point Is The Supreme Court Illegitimate?

I couldn’t imagine even asking this question at any point in my life prior to a week ago, but I think we now have to consider it. Much as The Former Guy challenges the Justice Department’s core belief in non-political justice on prior Presidents, we may have to consider our core beliefs in the Supreme Court regarding its place in Democracy soon.

Here’s how I understand the Supreme Court is supposed to work: because of their singular legal knowledge, and their singular wisdom, based in morality, they are the final arbiters of the law. When an issue is so divisive or controversial, other courts give it their best shot. If one party still is confused, or disagrees with the opinion of a lower court, it goes on up the ladder “all the way up to the Supreme Court!”.

In short, only the most important cases get to the Supreme Court and whatever decision they come up with is the law. There is nothing after that. Congress and The President can create laws to cope with Court’s decision and make work-arounds, but 1) that will probably will take some time and 2) those laws can be challenged … yes, all the way back to The Supreme Court.

Because they are supposed to take the long view of history, they are supposed to make decisions not based in public will of the time, so, in theory it’s ok if the majority of people don’t agree with their ruling. We’ll grow into it as we grasp its wisdom.

But this all assumes that 1) the Justices themselves are moral (as law is supposed to be) ;2) the Justices themselves can be trusted (as the law has to ultimately be); 3) the Justice are rational, as their wisdom and law are supposed to make sense, in accord with the laws they are talking about. In short, their decisions are supposed to make sense to lawyers in legalese and the general population who knows what’s right and wrong.

That’s a lot to expect from any group of people and yet it is a requirement to simply do the job of Supreme Court Justice. But what if the justices selected aren’t those things? We understand that they are human. No one is perfect and, as much as we need “perfectly wise” from them, that’s not possible. With 9 imperfect people, we can get the closest to wisdom from all of them combined, as one’s lack is covered by another’s knowledge or skill. It’s the best we can do, and that has to be good enough.

Still, they must have at least the average person’s knowledge, morality, and skill to come up with good to great decisions at the top of our legal system. Less than that taints their decision-making and our belief in their rulings — in short, their legitimacy.

So, let’s look at who we have got this session:

From last to first: Katanji Brown Jackson hasn’t ruled on anything yet, so we can’t say anything about her application of her gifts yet, but there was nothing suspicious about her process to being installed. Yes, she might have a “bias” because she’s a Black woman, but we want the “bias” (aka experience) on the Court. She seems very qualified. We’ll have to see.

Prior to her is Amy Coney Barrett, called “Well Qualified” by the American Bar Association, There are those who say “she lied about her belief in Roe v. Wade”, but she was the closest of the three Trump Justices to telling the full truth — “precedents may be overturned, but they don’t have to be”. I believe that she has not actually tried a case, so I doubt her experience, but okay. Most problematic to me is that she was rushed through her hearings by a politically motivated Mitch McConnell who blocked Obama’s pick for more than a year, under Donald Trump, who we are seeing to be a fascist, criminal, man who wanted to overthrow the system. She is, to use TV lawyer legal language out of context, “fruit of the poisonous tree”. I won’t give her a full weight of legitimacy star. 3/4 of a star.

Brett Kavanaugh was before that, and some of the same logic applies. Serious allegations of sexual violence — without resolution— make him less trustworthy with a great portion of the population: women. I do actually believe he might be an alcoholic and abusive at home, but that’s conjecture on my part. If I’m correct, though, his judgement is clouded by his drinking, as anyone’s would be. 60% of a legitimacy star, if that much. Also, he straight out lied to Susan Collins about his position about Roe. Maybe under a .5 star of legitimacy.

Neil Gorsuch is the first of the Trump Justices and his confirmation was in the early days of the administration before Trump was totally in control of the Senate. He also lied about precedent in his confirmation, immediately that disqualifies him from full legitimacy status. .75 of a legitimacy star?

John Roberts is perhaps the last of the generally-assumed- to-be – legitimate justices. Nonetheless he wrote the decision for Citizens United and was scolded by Barack Obama for it. Roberts just shook his head and smiled. Citizens United is generally credited with creating most of the corruption by financial interests of our political system, so I’m less than impressed with the wisdom of his decisions. On the other hand, he agreed with same-sex marriage rules, so that’s to his credit. On the other hand, I believe Roberts gutted the Voting Rights Act, so 2 out of three opinions I disagree with. He’s legitimate, I just don’t like him.

Steven Breyer is apparently thought of well by everybody. Full legitimacy.

Elena Kagan isn’t controversial, so I don’t have any reason to doubt her legitimacy for the Court, which is as it should be.

Sonia Sotomayor seems to be the kind of person who is the essence of legitimacy. She seems to be the most empathic for average people and the underserved. She seems most passionate about the legitimacy of the court as a non-partisan decision maker. I would like to see her become the Chief Justice.

Samuel Alito, according to lawyers I know, is off the rails regarding precedent. They have said they don’t know how to teach or understand law using Alito’s rule on precedence. The dissent of the overturn of Roe actually says that power is now the currency of the Court because of Alito’s statements. “Power, not reason, is the new currency of this court’s decision-making.”

They say, “The majority tries to hide the geographically expansive effects of its holding” — that is they are “trying to pull a fast one” on the country they serve. “And no one should be confident that this majority is done with its work”, they say later — this is just the beginning of such hiding the truth.

Remember that the final member of this dissent writers is now retiring.

Finally, Clarence Thomas, is even further off the rails, if such a thing is possible . First, his voice is tainted by the recent news of his wife’s plan to overthrow the government, and his possible knowledge/support of it. The apostle Paul says that leaders are supposed to be above reproach. Thomas is certainly not that.

Besides that, in his support for the overturn of Roe , he states publicly that he believes in Alito’s sentiments on steroids. Yes, he says, we’ve overturned Roe and everything else that goes along with it should also be looked at! So much for precedent, logic, reason, or belief in the country’s progress in belief. He also gets a zero rating on legitimacy.

By my count, we have two totally illegitimate Supreme Court Justices, three with a taint of politics, three legitimate judges, one of whom I disagree with (as it should be). One retiring, one untested.

Out of 9, 3 meet the standards required by the job! Yet, here we are.

What to do?

  • Impeach Thomas if there is any reason to. Replace him with a wise justice with an affinity for precedent.
  • Never install any other Justice nominee who believes in “Originalism” or political purity. Ask all nominees if they believe in precedent and/or Originalism and – under what circumstances they would overturn precedent.
  • Establish a “no confidence” rule for the court’s members, When The Court gets this rotten, there must be some way to remove it.
  • Write a law that says if a Justice lies during their Confirmation hearings, they can be removed by Congress or the Executive Branch.
  • Take no one from the Federalist Society’s roster, or any far left society which is the equivalent of it. Make the President and Congress do the hard work of finding these candidates, instead of giving them pre-packaged justices.
  • Until any of these things happen, add new Justices to the Court, to achieve a balance again.

Personally, I’d like to see at least half of the court be women, as a matter of equality, but that’s just me.

Resisting with Peace,

John

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