In the midst of the United States’ 247th celebration of its independence last week, it’s worth marvelling at the incredible success of a nation founded on the ideals of a group of courageous 18th century revolutionaries.
But as we do, let’s not paper over some pretty serious cracks that have emerged in those 247 years. Of those cracks, the biggest one to emerge in some time centres around one of the country’s most important institutions, the Supreme Court. It’s my view that some of the court’s recent actions pose a real threat to the country’s founding principles and the viability of its democracy.
I’ve written before that Donald Trump’s most significant legacy as president was his loading of the court with ultra-conservative ideologues (not to mention hundreds of appointments to the courts below).
Hiding behind the guise of strict originalist legal philosophy, which asserts all statements in the Constitution be interpreted based on their original portrayal, these justices have sloppily applied this framework to implement radical decisions that are actually highly political. What’s more, these decisions are antithetical to the fundamental founding vision of all being created equal, free to pursue life, liberty and happiness.
While I disagree with many of the judgments reached by this court, particularly those that curtail women’s rights to autonomy over their own bodies and that shamefully permit discrimination against same-sex couples, the critical issue is that the court has become an unaccountable, rampant political weapon, rather than a bastion of independent legal judgment.
This is not just a problem for liberal democrats. Conservatives should be equally concerned, and will be when, inevitably, the judicial pendulum swings back the other way.
While this court is Trump’s legacy, fixing it should be President Biden’s. Job one for the president should be restoring trust in the institution. He ought to do this because, plain and simple, it’s the right thing to do. But it is also good politics for the president because in doing so he’ll be able to harness the widespread anger at the court’s controversial decisions and use it as devastating ammunition in what will be a brutal 2024 presidential race.
Even with major domestic and international policy wins to point to, Biden’s path to victory is still unclear. But a Supreme Court whose decisions are satisfying only to a diminishing minority of voters, whose members have been plagued by high-profile accusations of corruption and suffers from dwindling confidence among Americans, is a prime opening to exploit in his re-election agenda.
Biden’s team should target common-sense, centrist voters with a plan to make the court the appropriate and accountable judicial check and balance it is meant to be.
First, Biden should address the court’s major accountability problem. In no world does it make sense for Supreme Court justices to accept luxury trips from major political donors without properly disclosing them. A proper strict originalist would agree that is contrary to the independent vision for the court originally set out in the United States Constitution.
No longer is it acceptable that the Supreme Court is the only court without a binding code of ethics, which ought to either ban these quasi-donations or must ensure they are transparently disclosed.
It’s also time for term limits. The most sensible suggestion is staggered, non-renewable 18-year terms, so each court’s membership reflects the selections of the previous 4½ presidential administrations. This would help curb the ideological loading of the court, from either side.
Of course, Biden will need the support of Congress to do any of this, but it is his time to lead. This court, having been off on a frolic of its own making, has lost its legitimacy.
Such reform would be a brilliant way for Biden to not only cement his place in history but wash away the tarnished legacy of his predecessor.
