The Supreme Court: Fear For Our Democracy’s Future

By Frank F Islam & Ed Crego, August 6, 2024 (Image credits: Tom de Boor, Adobe, Dreamstime, et al)

We believe in a strong, independent, and impartial judiciary. We need that for the sake of, and to preserve, American democracy.

That is why we need new rules of engagement for the Supreme Court. We need to reform the Supreme Court in a manner that ensures that it has balance and provides the balance of power envisioned by the founders.

If it becomes merely an extension of a political party or an ideology, it puts the future of this democracy at risk. A democracy at risk cannot long survive.

Those are the closing paragraphs from our blog, ”Reform the Supreme Court to Preserve Our American Democracy,” posted in July 2019 after the Supreme Court handed down a 5–4 ruling in Rucho v. Common Cause. That ruling harmed the American democracy by permitting virtually unrestricted gerrymandering at the state level.

Today’s decision to grant former Presidents’ criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

With fear for our democracy, I dissent.

Those are lines in Supreme Court Justice Sonia Sotomayor’s dissent in the case Trump v. United States, which gave complete and total immunity for official acts of a president.

2024 Court Decisions Moving Democracy Backwards

Unfortunately, the Court’s decision in the presidential immunity case was not the only decision in this year that should cause fear for the future of our democracy.

Decisions in three cases reduce or eliminate the role of federal agencies in developing regulations or policies, while elevating the power of the President and the Supreme Court. Ann E. Marimow, Nick Mourtoupalas, and Tobi Raji did an excellent job of summarizing these cases and the other major Supreme Court rulings of 2024 in their July 1 article in the Washington Post. Their analysis of each case is summarized below:

Issue: Power of Federal Agencies

Cases: Loper Bright Enterprises v. Raimondo, and Relentless Inc. v. Dept. of Commerce

Ruling: Judges no longer have to defer to agency officials when interpreting ambiguous federal statutes about the environment, the workplace, public health, and other aspects of American life.

Why It Matters:The court’s decision will significantly curtail the power federal agencies have to regulate thousands of private companies, products, industries, and the environment.

Issue: SEC Tribunal

Case: Securities and Exchange Commission v. Jarkesy

Ruling: A divided court invalidated the Securities and Exchange Commission’s use of in-house legal proceedings to discipline those it believes have committed fraud, saying the reliance on internal tribunals, rather than federal courts, violates the Constitution.

Why it Matters: The ruling is another example of the court limiting the power of federal agencies, and one of several cases this term challenging the power of the executive branch.

Issue: Downwind Industrial Pollution

Cases: Ohio v. EPA, Kinder Morgan Inc. v. EPA, American Forest & Paper Association. v. EPA, U.S. Steel Corp. v. EPA

Ruling: The court ruled 5–4 to pause the Environmental Protection Agency’s ambitious “good neighbor” plan as it’s challenged in a lower court. The plan would have limited smog-forming pollutants from power plants and other industrial facilities that cause problems for their downwind neighbors in other states.

Why it Matters: The decision is the third time in as many years that the court’s conservative majority has curbed the EPA’s power to regulate pollution.

In addition to these rulings directed at neutering the “deep or administrative state,” there were other Supreme Court rulings which should cause fear for the future of democracy.

One of those was a ruling striking down a federal ban on bump stocks, which enable semi-automatic rifles to fire like automatic rifles. Another was a ruling that a redistricted South Carolina congressional map which moved Black voters from one district to another to protect a Republican incumbent was acceptable gerrymandering.

These 2024 Supreme Court rulings added insult to injury to the 2023 conservative majority’s ruling against race-related affirmative action for admission to colleges and universities, and the 2022 rulings eliminating abortion rights for women and elevating the rights of gun owners across this country.

The Supreme Court in Perspective

There is no question that this Supreme Court controlled by the conservative majority is moving our democracy backwards and posing a threat to its future.

Pulitzer Prize-winning historian and political scientist, James MacGregor Burns, predicted this in his 2009 book, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. In it, he asserts, “…as the ultimate and unappealable arbiters of the Constitution, the justices have become more than referees in constitutional disputes that the framers intended. They have gone beyond interpreting the rules — they have come to create them.”

In 2009, that crisis was impending. Fifteen years later, in 2024, that crisis is here and is upending the balanced system of constitutional governance envisioned by our country’s founders.

David French, in looking back at the court’s decisions on the Trump presidential immunity case and the case related to having Trump removed from the ballot in Colorado, in his article for the New York Times commented:

In reading both decisions (i.e., the Trump presidential immunity decision and the decision to block Colorado from exercising the rights granted to it under Section 3 of the 14th Amendment), I’m struck by the way the court’s conservative majority (with the partial and notable exception of Amy Coney Barrett) ultimately made a series of policy choices more than it engaged in the kind of close textual analysis that should be the hallmark of originalism. The court’s policy choices are rooted in real concerns, but they’re not textual, they should not be constitutional, and they contradict the wiser judgment of the founders in key ways.

After this year’s Supreme Court term ended, Ruth Marcus in the opening of her July 5 Washington Post article wrote:

It is possible to look at the Supreme Court term that has just concluded and see episodes of restraint and even retrenchment. Possible, that is, but fundamentally misleading. Again and again, in the most important cases before the court, the conservative majority overreached, disdaining and distorting precedent along the way. The paradoxical bottom line is a dangerous enhancement of presidential power coupled with the continued kneecapping of the executive branch’s ability to enforce and regulate.

In this past term, the conservative majority of the Court have definitely pushed the Court further into the rule creation business and reshaped the operations of the federal government. This was not their only media-generating activity of the term. As Justin Jouvenal and Ann E. Marimow write in the Washington Post:

It was also a term when justices made headlines that had nothing to do with the law. Controversies over flags, secret recordings, and lavish travel funded by wealthy benefactors once again drew outrage and criticism, sparking a fresh push for ethics legislation in Congress.

Finally, in 2024, the Supreme Court justices once again demonstrated they are human beings and not supreme beings. This is a point similar to one William Baude, law professor at the University of Chicago, made as part of a group of three legal experts convened for an interview by the New York Times, in which he said:

It’s no secret that the Supreme Court trusts no institution in America as much as it trusts the Supreme Court. That’s not something unique to the Roberts court — we’ve been living in an age of judicial supremacy for more than 50 years. But I think the court should recognize that all of the flaws and biases it sees in other institutions are potentially true of itself, too. The justices are only human, even if they are really doing their best.

The Need for Reform Revisited

While the justices may not have recognized their own humanity yet, their personally irresponsible behavior and placing the superiority of their ultra-conservative opinions above the constitution in their decision-making has reduced public trust and increased calls for reform from Democrats and others.

Justin Juvenal addressed the trust issue in his July 6 Washington Post article, which he opens by stating:

The Supreme Court term that ended this week played out on a split screen: The justices issued blockbuster rulings that pushed the law sharply to the right, while outside the court some justices were buffeted by new ethics allegations that stoked questions from critics about their impartiality.

The dynamics may not seem related, but legal experts say they have mutually reinforced doubts among a large swath of the country over whether the nation’s highest court can be a neutral interpreter of the law.

Later in his piece Juvenal cites an Associated Press-NORC poll which showed “Nearly 4 in 10 respondents said they have hardly any confidence in the court, and 7 in 10 said they believe the justices’ decisions are motivated by ideology, not fairness and impartiality.”

Jesse Wegman of the New York Times focused on the illogic of the Court’s decisions in his “Gaslighting” article, observing:

… the justices in the court’s supermajority have raced to push through a lengthy conservative wish list of decisions, upending decades of well-settled law even as they pretend they’re being measured and reasonable. In its way, this subterfuge is understandable: Who wants to be seen as allowing violent people to walk around armed, or forcing pregnant women to wait until they are on the verge of death before they can receive standard medical care?

And, writing for The Atlantic on the new impeachment articles for Supreme Court justices put forward by Democrats in the House, Lora Kelley notes:

There is virtually no chance that the new impeachment articles will pass the Republican-controlled House, so they’re likely to end up a symbolic gesture. But the symbolism matters. These articles could help chip away at the perception that Supreme Court justices can do whatever they want. That perception is based in reality: The policies governing justices’ behavior have always been loose and informal, and the new code of conduct adopted late last year lacks a clear enforcement mechanism (other federal judges are subject to a more stringent system).

Sum it up and there is absolutely a need for reform of the Supreme Court. We have been advocating for that reform since 2019. The need for reform was great at that time. The need has grown exponentially since then.

What should be in the reform agenda? In 2019, we proposed term limits and expanding the court beyond nine justices. In 2021, the Presidential Commission on the Supreme Court of the United States established by Joe Biden examined those options and others. Unfortunately, the Commission’s final report, submitted in December of 2021, included arguments for and against changes but no definitive recommendations based upon its analysis.

The call for reform of the Supreme Court has not subsided, and there have been a myriad of reform recommendations since then. Over the past two years Democrats in the House and the Senate have proposed legislation to rein in and reform the Supreme Court.

President Biden, in a July 29 opinion piece for the Washington Post, proposed three reforms:

• A constitutional amendment making it clear that “there is no immunity for crimes a former president committed while in office.”
• Term limits for Supreme Court justices through “a system in which the President would appoint a justice every two years to spend 18 years in active service on the Supreme Court.”
• “A binding code of conduct for the Supreme Court.”

Near the end of his piece, Biden thanked the Presidential Commission on the Supreme Court for its “insightful analysis which informed some of these proposals.”

President Biden asserted that “these reforms are supported by the majority of Americans — as well as conservative and legal scholars.” In spite of this, given the current composition of Congress which would have to approve the reforms, it appears that there is no implementable reform agenda on the table at this time.

There is some positive news, though, regarding support for Supreme Court reform. Jim Kohlberg, philanthropist and chairman of the private equity firm Kohlberg & Company, has made a gift of $30 million to the Brennan Center for Justice at New York University to establish the Kohlberg Center on the U.S. Supreme Court.

That Center will “concentrate resources over the long term toward research, public education, and policy advocacy for Supreme Court reform.”

The results of the November 5 election, will be determinative regarding reform. If the Democrats win the presidency and control of Congress, reform will definitely be possible and probable. On the other hand, if there is a Republican sweep, that will mean there will not be an implementable reform agenda put into place for at least another four years.

If that happens, the conservatives in the Supreme Court will have won. They will be the rulers and their rulings will continue to stick daggers into the head, heart, and soul of the American democracy. The Supreme Court will become a primary reason that we should fear for the future of our democracy.