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The Supreme Court isn’t just partisan, it’s incompetent

“All of the United States’ most important governing institutions are failing at once. Congress has long been barely able to function. The Republican Party has atrophied into a cult of personality. The Democratic Party is unable to dislodge a senescent leader. And then there’s the Supreme Court, perhaps the only branch of the United States government that is capable of speaking in complete sentences right now.”

Maybe capable, but instead it’s speaking in tongues.

The quoted material above is a paraphrase, edited to be shorter, of a Vox article published here on July 8, 2024. Ian Millhiser, who wrote it, is a lawyer and author of books about the Supreme Court (see his bio here). The sentence about speaking in tongues is my invention.

What’s happening to our other societal institutions is a discussion — or, rather, a series of discussions — for another time. This posting is about the Supreme Court.

That this is a partisan court making political instead of legal decisions is no longer a supposition. It’s clear the six conservative justices, three appointed by Trump, are reshaping American life by dismantling the precedents that once protected everything from voting rights to environmental regulation.

But the court’s dysfunction goes deeper than replacing legal reasoning with an unpopular political ideology and two of the justices’ ethical lapses. It’s failing at a functional level, beginning with faltering case management. “The justices are barely able to manage their own docket, even though it’s been shrinking for decades,” Millhiser writes. From there, it gets worse.

“They publish incompetently drafted decisions that sow confusion throughout the judiciary, then refuse to accept responsibility when those decisions lead to ridiculous and immoral outcomes.

“They take liberties with the facts of their cases, and they can’t even be trusted to read the plain text of an unambiguous statute correctly. In just the last few years, they’ve overruled so many seminal precedents that law professors no longer know how to teach their classes.”

“If the justices did not wield such awesome power, and if lawyers who practice before them did not have to treat them with ritualized obsequiousness, most of the justices would be laughingstocks. Few people this famous are so ostentatiously bad at their jobs.”

That’s a damning performance evaluation.

I’ve been a lawyer for many years, and always considered the Supreme Court the heart of our legal system and its oracle on high — until now. I couldn’t imagine a Supreme Court as distrusted and disrespected as this one is.

There have been worse Supreme Courts: Before the Civil War, ones that protected slavery; postbellum, ones that upheld Jim Crow. It wasn’t until 1954 that racial segregation was overruled. The courts since then had been largely practical, rising to the needs of a modern industrialized state with a much larger population.

But now, we’re stuck with a court trying to turn back the clock; the only open question is how far backwards they’ll take us.

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