America is not a conservative country. The majority of its people vote Democratic, support abortion rights, and want gun control, equal rights for gays, minorities, and women, and separation of church and state.
Republicans defend a constitutional system that gives them, as a political minority, not just protection from the majority but political power. They misread the Constitution. It was intended to protect the minority from “tyranny of the majority,” not allow them to impose a tyranny of the minority on the majority.
Democracy depends on the consent of the governed, and rule of law depends on the willingness of most members of society to respect and obey the law, even if only because it’s in their self-interest to do so (as opposed to living in a lawless, violent society). These things are more fragile than most people realize, although recent events are bringing that realization into more people’s consciousness.
The current Supreme Court is in danger of becoming, if not exactly a lawless court, a political court.
The legitimacy of how some of the current justices got on the court, tilting it in a direction clearly out of sync with the majority of Americans, is itself an issue — especially respect to its latest addition, Amy Comey Barrett.
In 2016, Republicans refused to give President Obama’s relatively innocuous nominee, Merrick Garland, a hearing or vote on the grounds it was an election year and the next president should choose the nominee. Then in 2020, liberal justice Ruth Bader Ginsberg died just weeks before the election, and what did they do? They rammed through Barrett, a controversial figure nominated by a president who within days would be ousted from office by America’s voters.
The hypocrisy of this went beyond stunning and called into question the legitimacy of Barrett’s presence on the court, and of the court itself.
And then there’s Brett Kavanaugh, who said in his confirmation hearing that he respected precedent and implied he wouldn’t overturn Roe v. Wade; now he’s singing a different tune (see CNN article here). A lot of people believed he lied about other things in his confirmation hearing, too.
Chief Justice Roberts, a George W. Bush appointee and himself a conservative, is concerned enough about the public’s perception of the court that he’s pulling back to the center and trying to drag at least a couple of the other conservative justices with him.
The Supreme Court doesn’t have to be legitimate in the public’s eyes. Nothing in stone, the Constitution, or elsewhere precludes a political court issuing partisan decisions. It was that way before the Civil War, and at times since. Right now, it looks like it will be again, despite Roberts’ efforts to prevent it. Barrett is one bridge too far. Kavanaugh and Barrett together might be two bridges.
There’s a way to test it. The rightwing majority has let stand a Texas vigilante law that empowers private citizens anywhere to sue people for exercising what is still a constitutional right. This is a game more than one faction can play, if those are going to be the rules from now on. There’s talk in some blue states of enacting laws that allow private citizens to sue people for exercising the Second Amendment privileges that rightwing justices have conferred on them. So let’s enact those laws and see if they get equal treatment from this court. If they don’t, it’s a political court, and a hypocritical one at that.
And if it is, what to do about it is obvious: If the court plays political games with its judicial authority, there’s nothing to stop a Congress controlled by Democrats, backed by a Democrat in the White House, to play political games with the court. It is this threat that has given past Supreme Court justices pause, and imbued in justices a sense of caution, especially when they’re going against the public’s grain. Congress can term-limit current justices, shift the majority by packing the court, or fencing it in by stripping it of jurisdiction. And if we’re going to be stuck with a political court, staffed by justices appointed by underhanded methods, we should do all of those things.
On the other hand, if they decide to be a judicial entity instead of a political one, we should do none of those things.
Let this be a warning shot over their bow.
Congress cannot term limit sitting Supreme Court justices except by impeachment and conviction. [Edited comment]
That depends on who you ask. Conservatives insist it requires a constitutional amendment (example here), but that’s self-serving. When Chief Justice Roberts was an associate White House counsel under Reagan, he argued there are ways to do it; see story here. That was self-serving, too; the court had a liberal lean then. The court would decide the issue, so you should pack it first with sympathetic justices, then term-limit them.