The Case to End the Supreme Court as We Know It

Trump’s influence on American jurisprudence has been the quietest and most successful part of his destructive Presidency. He has appointed more than two hundred judges to federal courts, surpassing almost any other recent President at this point in their tenure. He has also made sure that the judges he has selected for these lifetime appointments are among the youngest ever—on average, forty-eight years old—insuring the longevity of their impact. And, with eighty-five per cent of his appointees being white, he has cemented the gross mismatch between the federal judiciary and the public. This latest development should certainly call into question the haphazard rules and procedural tricks that allot Trump the power to decisively tip the scales of justice in his favor. Pressed further, one might also ask: Why should the Supreme Court, an unelected body that is richer, whiter, and more male than the United States is, continue to have such outsized power in the lives of ordinary people?

The insistence that the Supreme Court is not a political body is a principle of high folly in American politics. Just last fall, Chief Justice John Roberts lamented the perception that the Court was politicized, saying, “When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the Court function, and the results in our cases do not suggest otherwise.” In reality, appointments to the nation’s highest court reflect the current balance or imbalance of political power, making it impossible to neatly untie them from the political bodies that determine who sits on the Court and who does not. Anyone who doubts this need look no further than the partisan rage displayed by Justice Brett Kavanaugh during his Senate confirmation hearing, in late 2018. From blaming an inquiry into his personal history on “revenge on behalf of the Clintons” to proclaiming “What goes around, comes around” to Senate Democrats, the future Justice arrogantly flexed raw Republican power.

Moreover, as the branch of government that is least accountable to the American public, the Supreme Court has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights. Indeed, at the most significant moments in African-American history, the Court reflected the most reactionary elements of the culture in its efforts to abridge, degrade, or simply eliminate the rights of African-Americans. In 1857, it famously ruled, in Dred Scott v. Sandford, that African-Americans were not and could not be citizens of the United States; Chief Justice Roger Taney concluded that African-Americans were “so far inferior, that they had no rights which the white man was bound to respect.” It took a civil war and its revolutionary upending of American society to reverse the Supreme Court’s damaging ruling, leading to the passage of the Civil Rights Act of 1866, which guaranteed to all, including the formerly enslaved, the same rights that are “enjoyed by white citizens.” The Fourteenth Amendment, guaranteeing birthright citizenship to all and creating the legal principle of equal protection before the law, was built on the foundation of the Civil Rights Act of 1866. In combination with the Thirteenth Amendment, which abolished slavery, and the Fifteenth Amendment, which prohibited racial discrimination as an obstacle to voting, these acts of Congress were intended to elevate African-Americans into the role of citizens, equal before the law and empowered by the ballot to shape the world in which they lived.

But, within a generation of the passage of this historic legislation, the Supreme Court slowly and assuredly denuded that legislation’s most potent power: constructing the personhood of those who were once property. The Court’s decisions in the aftermath of Reconstruction reduced the amendments to their most literal meanings, ignoring their expansive conceptions as means to protect the rights of newly freed people and guarantee them—indeed, all people born in the United States—the privileges and protections of U.S. citizenship. In 1883, the Supreme Court heard a group of cases that had been bound together to test the constitutionality of the Civil Rights Act of 1875, which prohibited discrimination in hotels, trains, and other public accommodations and “places of public amusement.” In an 8–1 decision, the Court ruled that it was legally permissible to ban African-Americans from public accommodations and decried African-American demands to participate in the public sphere as “special” rights to which they were not entitled. Though the stench of slavery still polluted the air, the Court offered willfully ignorant proclamations of color blindness. In response to African-Americans’ demands for equality, the majority opined, “There must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.” Of course, “other men” had not been enslaved, nor subjected to savage acts of violence and harassment, nor banished from public life as an affront to their claims of citizenship.