Laleh Ispahani
NEW YORK – In its most recent term, the US Supreme Court issued significant and controversial rulings on abortion rights, gun safety, climate, immigration, and church-state separation. Beyond the shock of the decisions, the majority’s aggressive tone and overt embrace of ideological theories well outside the judicial mainstream has raised alarm bells.
By design, the US Constitution made the judiciary the most independent branch of government, granting Supreme Court justices – who are appointed by the president and confirmed by the Senate – lifetime tenure. The idea was to create a judicial system in which impartial judges would hear cases and make up-or-down decisions based solely on the merits.
But the Trump Court – so named because the former president’s three appointments cemented its far-right majority – is a far cry from what the framers envisioned. Rather than operating independently, the Court now bows to an activist minority of Americans and powerful corporate interests. And far from being insulated from politics, its right-wing justices are leading a broader trend in which judges and courts increasingly weigh in on policy and culture-war issues, as well as providing a second front to protect corporate power.
The Court’s last term demonstrated the breathtaking impact that unelected, unaccountable, and highly ideological judges can have on the lives of millions of Americans. The justices reversed Roe v. Wade, a half-century-old precedent, thereby allowing states to ban abortion – stripping the rights of 40 million women (and indirectly affecting us all). This is not a hypothetical revocation of rights – dozens of states already had passed so-called trigger laws – bans and severe restrictions ready to go into effect immediately after the decision. And, in a case involving gun-safety laws, the justices threw out reasonable concealed-carry rules that applied to approximately one-quarter of the population, opening the door for a broader legal assault on gun laws at a time when mass shootings, including school massacres, are skyrocketing.
Then, just before entering recess, the Court severely curtailed the Environmental Protection Agency’s regulatory authority, just as the rising costs of climate change are becoming increasingly apparent. But, perhaps worst of all, the Court announced that it will soon consider a case that could validate the democracy-destabilizing theory that state legislatures may ignore elections results when naming presidential electors.
The Court’s rulings are out of step not only with decades of precedent but also with the American public. Just 14% of Americans want gun laws to be less strict than they were just before the Court’s latest gun ruling, and two-thirds oppose the decision to overturn Roe. Moreover, solid majorities support “policies to address greenhouse-gas emissions and climate change.”
This year’s long-sought conservative policy goals have come at the expense of the Court’s legitimacy, with a shocking 61% of voters now expressing little to no confidence in the institution. As the Pulitzer Prize-winning Supreme Court reporter Linda Greenhouse put it (addressing the justices directly): “What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.”
Nor is this problem confined to the Supreme Court. Having been packed with Trump appointees, lower federal courts are running amok, teeing up the politically motivated cases that have allowed the Supreme Court to do so much damage, and sometimes going even further than the high court has.
For example, in Florida, a Trump-appointed judge – whom the American Bar Association had previously categorized as “not qualified” – voided the country’s national mask mandate for public transportation, even though the law governing the Centers for Disease Control and Prevention clearly authorizes it to set such rules. In Louisiana, another Trump-appointed judge singlehandedly threw a wrench into a crucial federal effort to address climate change by including the social cost of carbon in executive decision-making. And the list goes on.
The current composition of the federal judiciary has been long in the making. Trump publicly outsourced the judicial selection process to conservative legal activists, and the Republican Senate leader, Mitch McConnell, made sure that his appointments were confirmed as quickly as possible. Seeing the courts as a key counterweight to Democratic administrations, McConnell has long sought to reshape the judiciary so that it will reliably block popular progressive policies. In doing so, he has also rolled back important strides toward making the federal bench more inclusive and diverse across race, gender, education, and professional background.
Even though Trump lost the popular vote in 2016 and was in office for only four years, more than one-quarter of federal judges today are Trump appointees. And even though Trump-appointed judges tend to be more ideologically conservative, younger, and less experienced than others on the bench, they have wasted no time issuing major rulings – many of which have been criticized as unmoored from the law.
These judges were confirmed by a narrow Republican Senate majority that represented only about 44% of the population at the time. By cynically manipulating Senate rules and procedures, the Republicans have achieved a lock on the Supreme Court that could last decades, putting the country on a path to an extreme version of minority rule.
Reshaping the judiciary to secure corporate power and unpopular right-wing ideological outcomes is a formula taken from the authoritarian playbook. Something very similar has played out in Hungary under Prime Minister Viktor Orbán, whose government has packed the country’s Constitutional Court with its preferred justices and forced 400 judges to retire.
Make no mistake: this new form of judicial supremacy is a fundamental threat to both democracy and the rule of law. Judges and justices should not be acting as super-legislators. If America no longer has a free, fair, and independent judiciary that acts within the limits of its powers and adheres to democratic norms, it is hard to see how it can possibly hold others around the world to account. America’s radicalized judiciary is feeding a global crisis of legitimacy. A house divided cannot stand, and nor can it stand up to intensifying authoritarian attacks on human rights and democracy around the world.
Laleh Ispahani is Co-Director of the Open Society Foundations-US.
Copyright: Project Syndicate, 2022.
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