Justice Brett Kavanaugh and Justice Amy Coney Barrett, listen as US President Donald Trump addresses a joint session of Congress REUTERS
It’s time for a new court to watch the increasingly partisan Supreme Court, argues Fordham law professor Julie Suk in Slate’s Saturday “Amicus” broadcast.
New polling from Gallup shows cratering approval for the Supreme Court, with Americans trust and confidence in the High Court hitting another historic low. This has everything to do with the court’s so-called “stench” creating “in the public perception that the Constitution and its reading are just political acts,” as quoted by Justice Sonia Sotomayor in her Dobbs dissent.
And this partisanship, in turn, has plenty to do with the confirmation process of justices, and how it’s no longer dictated by an American majority, said Suk.
“There was another era a generation ago when most justices would get like 90 votes or close to everyone in the Senate, or a very healthy supermajority,” Suk told show host Dalia Lithwick. “But now you get these razor thin majorities, and some political scientists have looked at who are the people in the Senate represented by the senators who are voting in the majority. And we get this problematic thing where at least for some of the justices, like Gorsuch and Kavanaugh, the senators who voted to confirm them represent millions fewer Americans than the senators who voted against those confirmations. So, I think in some ways they’re out of step.”
Their “out-of-step” nature leads to woefully unpopular decisions, like the one gutting the nation’s Civil Rights laws that finally brought true democracy to Americans of all races only 60 years ago. And it recently ripped away personal rights of women over their own bodies and put it in the hands of legislators.
Replacing justices, expanding the court or simply waiting for justices to retire takes too long, said Suk. However, a shadow court could issue advisory opinions on the same issues the Supreme Court decides, giving lawmakers and the public a concrete alternative to judicial supremacy.
“I think that we can create institutions within Article 1 that would support Congress’s ability to push back [against decisions that go against the will of their voters],” said Suk. “Congress is not perfectly representative, but it is the most representative institution, because the people nationally elect representatives in Congress. … I think the place to start is Congress. And the Article 1 institution that I propose is basically a shadow court that shadows the Supreme Court, decides all the same issues that the Supreme Court is deciding, but decides them ahead of time in an advisory way, not in a legally binding way.”
This, said Suk, would produces opinions that are not binding on the Supreme Court and not binding on the lower courts, but would provide jurisprudence that Congress can then use as the basis for writing a statute to overrule an obnoxious court ruling by aloof justices who more closely follow the will of organizations like the Federalist Society rather than the popular, more progressive opinions of modern voters.
Whatever argument the shadow court makes — as a proxy of elected legislators — becomes the basis for defending that statute if it’s proposed to be struck down before the Supreme Court, said Suk, to check the impulses of politicized justices.
“In a healthy and legitimate constitutional democracy, we the people should have supremacy and control over constitutional lawmaking,” said Suk.