Commentary

Maybe it’s time to reform the United States Supreme Court

May 28, 2022 9:03 am
A sign posted on a light pole near the U.S. Supreme Court says Justice Sam Alito wants to kill pregnant women.

A sign posted on a light pole near the U.S. Supreme Court after a leaked draft opinion by Justice Samuel Alito shows that the high court looks ready to overturn Roe vs. Wade. (Photo by Jane Norman of States Newsroom).

Virtually all Americans are in a tizzy about the forthcoming ruling that may overturn Roe vs. Wade. That forthcoming ruling, drafted by Supreme Court Justice Samuel Alito, was leaked to the public. Pro-birth advocates, comprised mostly of Republicans, are hopeful abortion rights will be overturned while most supporters of the Democratic Party are furious about women’s right to choose being taken away.

I’m glad a Supreme Court employee spilled the beans.

Why?

It reveals a serious and significant weakness of our justices.

Get this: The Supreme Court of the United States is the only public body that holds closed door meetings, a grave violation of every state’s open meeting laws.

Hence, the Supreme Court should — like all public bodies in 50 states did by 1976 — hold open meetings of their deliberations so, we the people, will not be blindsided by their discussions and rulings.

Let’s explore several other common sense reforms.

First, the Associated Press reports “a strong majority of citizens believe justices should keep their political views out of their decisions, but not even 1 in 5 polled believe they do an excellent or good job of that.” 

Therefore, one reform needed is legislation requiring 50% of the justices must be life-time registered GOP and 50% Democrat. That would mean we need an even number (8, 10, 12) of justices so future decisions would require dialogue and consensus (hey, that’s a novel idea) versus voting the party line.

This suggestion has merit. The Harvard Law Review notes “legal culture has become increasingly polarized in recent decades, such that liberal and conservative justices increasingly operate in different worlds and speak to different audiences.” Case in point: When Alito delivered the keynote address to the Federalist Society on Nov. 12, 2020, noting his purposeful pursuit of an aggressively conservative agenda, he admitted to being a justice of the GOP and not a justice for all Americans (www.scotusblog.com).

Secondly, a structural reform that is gaining momentum is Supreme Court term limits or a mandatory retirement age. Mandatory retirement age rules prevail in a host of public-sector occupations and this reform is supported by 77% of Americans (www.fixthecourt.com, May, 2020).

The third reformation idea is to impose ethics rules on the justices, including adopting a code of conduct. “Currently, the Justices are the only judges in the country not bound by some code of ethics concerning their behavior,” (May 30, 2021, Harvard Law Review).

A code of conduct would have prohibited liberal justices from going on foreign trips paid by outside organizations or the late Justice Antonin Scalia hunting with Vice President Dick Cheney just prior to hearing a case where Cheney was the petitioner. Additionally, Justice Clarence Thomas’s wife, Ginni, attended the Jan. 6 “Stop the Steal” rally with Donald Trump yet Justice Thomas did not recuse himself from a Jan. 6 Capitol insurrection case.

Fourth, on Feb. 4, 2021, Sen. Lindsey Graham, R-S.C., and Sen. Sheldon Whitehouse, D-Rhode Island,  sent a letter to the Supreme Court of the United States suggesting that a “legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address the issue itself.”

This bipartisan suggestion is warranted.

Finally, on May 13, President Biden signed the judicial ethics law on justices’ stock ownership disclosure; a good start to transparency.

The SCOTUS has had — since 1789 – plenty of time to police their actions but to no avail. The public’s esteem for Supreme Court actions are at an all-time low (40%).

Congress needs to put politics aside, do their job and aggressively reform the Supreme Court. If not, we can expect more secrecy, political divisiveness, unethical behavior and a ripple effect of law interpretation changes to continue.

This commentary was first published by the Daily Montanan, part of the States Newsroom network of news bureaus that includes Louisiana Illuminator.

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