Will senators confirm Supreme Court justices dedicated to protecting our democracy?
Democracies survive best when citizens and politicians can trust in three things: (1) election winners will not be sabotaged by losers; (2) losers will have regular chances to try again and again, meaning that winners will not be allowed to entrench themselves and rule forever; and (3) enough people will uphold the first and second rules.
The Supreme Court can play a key role in this system of trust by upholding constitutional protections against political sabotage and entrenchment. For example, the president can only do those things that are consistent with the constitution (Article VI), and consistent with the laws (Article II, Section 3) and the budget (Article I, Sections 7 and 8) authorized by Congress.
Some Supreme Court decisions usefully cut off opportunities for entrenchment. We list two here:
- The court ruled twice that the president is not above the law. In 1952, President Truman issued an order to seize private steel mills to get around a labor strike during the Korean War. This upset the mill owners as well as the workers. The court ruled the president’s order was unconstitutional (Youngstown Sheet and Tube Co. v. Sawyer). In 1974, the Supreme Court ruled that President Nixon could not use executive privilege to disobey a congressional subpoena (S. v. Nixon).
- The court ruled in 1964 that the news media cannot be sued for libel by public figures, except when someone can prove a news outlet was acting out of actual malice towards the aggrieved public figure (NYT v. Sullivan).
Some Supreme Court decisions were harmful, exposing citizens to government oppression:
- The court upheld racial discrimination, twice. In the 1857 Dredd Scott case, before the war, the court ruled that former slaves were not citizens. As a consequence, they could not vote and had no rights. In the 1896 Plessy v Ferguson case, after the war, the court ruled racial discrimination in public facilities was legal so long as everyone had access to facilities of equal quality.
- In 1944, during World War Two, the court ruled the government could force Japanese-Americans from their homes into internment centers.
- In 1993, the court ruled that police seizure of private property without any court trial (known as asset forfeiture) is permissible – despite the fifth amendment’s just compensation clause and the fifteenth amendment’s due process clause.
With the composition of the Supreme Court being so consequential, the Senate has an eternal obligation to confirm justices who will defend the constitution on a non-partisan basis for all people within our borders. We hope citizens will ask their senators to go beyond that and make support for free, fair, and accountable democracy one of their major confirmation criteria.
In the event that a particular group of justices make a harmful decision, there are remedies.
Congress can, and sometimes does, correct Supreme Court errors. For example, after the civil war, Congress made the Dred Scott decision irrelevant by adopting the 13th, 14th, and 15th amendments to the constitution. These amendments outlawed slavery and guaranteed citizenship to everyone born in the USA (or naturalized to it), equal protection under the law, due process of the law, and voting rights for all citizens. In 1964, Congress adopted the civil rights act that ended segregation in public places and banned employment discrimination based on race, color, religion, sex or national origin.
In addition, Article III, Section 1 of the Constitution states that Supreme Court justices may continue in their offices only upon good behavior. Threats of impeachment have allegedly motivated at least a few justices to watch themselves, and one, Abe Fortas, stepped down voluntarily. None so far have been removed by impeachment.
Another remedy is to change the number of justices to ensure a balance between conservatives and liberals on the court. Amazingly, the constitution does not say what the number must be. In fact, Congress has changed the number up and down several times, but never to achieve a balance – the goal was always to gain partisan advantage. This is a very dangerous game to play. On the one hand, citizens and politicians will not obey decisions made by an obviously stacked court. On the other hand, history shows us that court stacking is often one of the first steps on the road to dictatorship. One of these contests is playing out in real time: many citizens in Poland are concerned that a move to reduce the retirement date of justices is an excuse to stack the court with ruling party loyalists. Protest demonstration have been ongoing.
The best solution for the USA is to ensure the Senate confirms justices acceptable to most Americans, regardless of party affiliation. This is best achieved by requiring a two-thirds majority within the Senate. This is something all citizens who love their democracy and their freedom could ask of their senators. As judge Billings Learned Hand once famously said, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
Photo credit: Unknown, CC0 Public Domain.