Supreme Courts have frequently been ideologically divided, but the five justices appointed by Presidents George W. Bush and Donald Trump (plus Justice Clarence Thomas) have created the first partisan Supreme Court in American history. Their rulings veer into opinion, eroding public trust and diminishing its institutional legitimacy. Far worse, their behavior poses an existential threat to American democracy — and warrants Democrats upgrading the Court.
The Founders Intent
James Madison would deplore the spectacle of today’s partisans substituting personal preferences for legal scholarship.
Partisanship by the Bush and Trump justices has fundamentally altered the Court’s character. Their rulings supporting gerrymandering, Jim Crow poll taxes, and voter suppression have repeatedly benefitted the Republican Party. This bias diverges sharply from the hopes of the Founding Fathers. Madison, for instance, envisaged an apolitical court of judicially modest independents rendering reasoned interpretations of the law.
Madison would deplore the Court’s opinionated, untethered rulings. Dismissive of precedent and disdainful of centrist legal and popular sentiment, the partisans hold their personal opinions as superior to the Constitution and established law. This arrogance is exemplified by Justices Alito and Gorsuch, issuing rulings that would strip health insurance from 31 million (California, 2021) or knee-capping long-standing federal subsidies that would devastate the national housing market (Collins, 2021).
Deplored by authoritative critics, this behavior has created what the late democracy theorist Robert A. Dahl would describe as a “legitimacy crisis” for the Court — with Americans increasingly dismayed by their opinionated rulings.
Popular dismay with opinionated rulings and thwarting the Founders’ expectations are serious, of course. But the partisans soon will be ruling on issues that pose existential threats to American democracy.
Trust in elections and sharing a common body of beliefs are twin pillars of democracy that are being undermined by various Republican state officials — actions that ultimately will be adjudicated by the Court.
Laws to roll-back expansive ballot access are de rigueur since 2020 in Republican-controlled states. Much worse are laws being formulated by sundry Republican legislatures (Georgia and Arizona, for instance) enabling them to nullify popular vote outcomes. Those laws will facilitate legislators rigging elections by making partisan Republicans instead of traditional nonpartisan officials responsible for administering elections. They will determine voter eligibility, adjudicate ballot access and resolve vote-counting disputes — deciding which votes are counted.
Empowering Social Media Disinformation
Democracy also rests on voters drawing on a common body of facts, provided in the past by newspapers and broadcasters. The internet changed all that, digital platforms emerging as primary information sources. The platform business model is to maximize viewer engagement by promoting flamboyant, angry, incendiary postings that have rendered facts an afterthought in e-spaces. Moreover, Facebook and other platforms excel at evading accountability and are ambivalent at best about content moderation like removing anti-vaxer disinformation or banning illegal drug sales. Because it inordinately drives profitable user interaction, platforms permit right-wing conspiratorial disinformation to flourish, including Neo-Nazi and white supremacist content, while allowing Russian (and Belarusian) propaganda to proliferate. Online disinformation is so routinely murderous in many middle- and low-income ethnically-diverse nations like Myanmar, Ethiopia and India that Nobel Laureate Maria Ressa and others have urged Facebook to abandon those markets entirely in the name of humanity.
This business model is extremely important to Republicans reliant on incendiary disinformation. Weaponized bogus information, vitriol and conspiracies disseminated by Party operatives is central to motivating loyalists with pathological myths about Democratic pedophiles, stolen elections and the like. This recipe is highly compelling — according Republicans special treatment by platforms, despite claims otherwise. A primary result is an increasingly polarized and divided America, with supermajorities (78%) of Republicans, for instance, now snookered to believe that President Biden stole the 2020 election.
Republicans are determined to shield this flood of disinformation from content moderation. Legislators in Florida and Texas, for instance, have prohibited platforms from censoring any political content, no matter how outlandish. And they also prohibit platforms proscribing politicians, a response to several bans on Donald Trump and others.
Supreme Court Term Limits
While Congress may intervene to protect elections and to insist that online content be factual, the Supreme Court partisans will ultimately determine if these twin pillars of democracy remain upright.
That fraught prospect warrants upgrading the Supreme Court to restore the Madisonian apotheosis.
Supreme Court terms should be set at 18 years, permitting each President two appointments per term. That reform would simply regularize the historic pattern: While court appointments are random, from President John Adams through George H.W. Bush (1992), 100 justices were appointed in 196 years. In contrast, only 9 have been appointed in the last 28 years. In fact, only Trump of the last 4 presidents has appointed 2 or more justices per term, the others averaging just one.
The transition could begin with President Biden whose two appointments (and those of his successors) will temporarily expand the Court. Conferring senior status (like federal Judge Sandra Day O’Connor) at completion of their terms for the new appointees will satisfy the Constitutional provision for lifetime appointment.
Finally, to ensure regularized appointments every two years, the confirmation process needs reform, perhaps setting the Constitutional “advice and consent” threshold at (say) 40 Senators.