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Nothing special, one post at a time since 2012

How To Fix a Lawless Supreme Court

The Judiciary Act of 1869 “provided that the Supreme Court of the United States would consist of the chief justice of the United States and eight associate justices [and] established separate judgeships for the U.S. circuit courts”.

There were nine circuit or appellate courts in 1869. The US population was around 38 million. Now there are thirteen circuits. The population is 338 million. We’ve also got a lot more laws and lawyers. A simple act of Congress, signed into law by the president, could add four justices to the Supreme Court, one for each circuit. Given the Court’s additional workload, simple arithmetic and common sense support adding four Supreme Court justices.

An added benefit would be that the president could nominate and the Senate could approve four justices who respect the Constitution and legal precedents; who don’t want to promote Christianity, patriarchy, white supremacy, plutocracy and the gun culture; and who don’t want to give corporations license to destroy the environment. In other words, seven honorable justices vs. the six dishonorable ones we have now.

I think that’s the best way to fix a lawless Supreme Court, although there are other possibilities (all, of course, assuming a Democratic House of Representatives and at least fifty Democratic senators go along).

Paul Waldman explains how states like California and New York are already working on new licensing requirements and the wide-ranging designation of what the Republican majority called “sensitive places” where guns can be prohibited:

[When you say] “the Supreme Court says I have the right to carry around this lethal instrument giving me the ability to murder anyone I encounter in an instant”, the rest of us are more than justified in responding: “Yes, that’s what the Supreme Court says. But we will take steps to protect ourselves from the danger you and other gun owners pose”….You’ll be able to get your guns, but just as you have to show you can operate a motor vehicle safely before getting a driver’s license, you’ll have to satisfy some requirements before getting a gun permit.

And just like you can’t drive your car on sidewalks or in grocery stores, you can’t take your gun anywhere you want. No doubt the Supreme Court Six will rule in favor of insanity, but, as Mr. Waldman says, some laws will survive, the legal process could take years and, meanwhile, lives will be saved.

Jamelle Bouie has written two columns on the same subject this week. From his second:

[Article 3, section 2 of] the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.” [But] the court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction.… It can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.

He then discusses the “Guarantee Clause” (Article 4, section 4″, which says that “the United States shall guarantee to every State in this Union a Republican Form of Government”. A republic is generally considered to be a state in which supreme power is held by the people and their elected representatives, not by a monarch. Interestingly, courts have been reluctant to specify exactly what a republican form of government is, leaving that decision to Congress. Mr. Bouie continues:

[But we do have] Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, … and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”

This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”

A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.

 As Mr. Bouie says in his first column:

The Supreme Court does not exist above the constitutional system… In the face of a reckless, reactionary and power-hungry court, Congress has options….The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

It’s almost impossible to imagine the 50 Democrats in today’s Senate all having the courage and understanding to seize the moment and reform the Supreme Court (one of them who’s against reforming the filibuster is rumored to have killed a proposed surtax on incomes over 10 million dollars, I suppose because of her support for the working class).

But it looks like a terrible crisis may be approaching. Three law professors write in today’s Washington Post about a case the Court has agreed to hear later this year, Moore v. Harper:

Just three years ago, a 5-to-4 Supreme Court prohibited federal courts from addressing whether extreme partisan gerrymandering violates the Constitution. But don’t worry, the court said, state courts can curb the practice if they conclude it violates state constitutions.

Harper invites the Supreme Court to go back on that promise. This invitation is based on an unsupportable legal claim known as the independent state legislature theory (ISLT). The theory would disable state courts from protecting voting rights in federal elections.

In theory (and given the recklessness of the Republican majority), the Court might rule that state legislatures have absolute authority to determine how their states vote for president. State legislators could ignore the voters and appoint whoever they wanted to represent their state in the Electoral College.

The outcome in 2024 is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets [the rest]. Biden is going to the White House for another four years.

Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis.

We then hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote: North Carolina, Wisconsin, Michigan, Pennsylvania and Arizona.

CNN announces that DeSantis has won the election…. 

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