In the wake of Wednesday’s Supreme Court decision that many say has gutted the Voting Rights Act and handed the GOP the ability to break up minority voting power, New York Times columnist Jamelle Bouie has a straightforward assessment of the situation: “The Supreme Court is corrupt.” Not only that, he says, but something must be done to fix it.
Some might argue that the court is just doing its job, but according to Bouie, “They’re not doing their jobs. They are in fact doing something very different. They’re acting as a super legislature: an unelected group of people who have taken it upon themselves to correct Congress not when Congress has overstepped its bounds, not when Congress has overstepped its powers, but simply when the Court simply doesn’t like what they’re doing.”
He explains that while corruption is usually associated with monetary bribes — noting, incidentally, that there is certainly some of that happening, as Clarence Thomas in particular is known for taking large gifts from his wealthy benefactors, and Alito too — “corruption also has a broader meaning. It can mean the maligned use of power, the substitution of the public trust for your own private will, your own private interests. And that more than anything else is what is happening with the Supreme Court.”
He explains that the conservative majority on the court has several key goals: gutting Reconstruction amendments, aggrandizing presidential power (at least for Republicans), expanding corporate speech, allowing the wealthy to interact with the political system however they choose and generally pursuing the particular partisan interests of the Republican Party.
To accomplish these goals, says Bouie, “The Roberts Court is quite fond of simply ignoring the plain text of the Constitution whenever it gets in the way of their particular political and ideological projects.” For example, “The text of the Constitution clearly gives Congress the power to handle racial discrimination in voting,” but when the issue reached the court in 2013, “it simply made up a new doctrine — state sovereignty, that all states have to be treated equally — in order to undermine the provision that subjected states with histories of voting discrimination to stricter scrutiny by the federal government.”
Another high-profile example, “When the court wanted to protect its special boy, Donald Trump, from criminal prosecution, it invented a doctrine of criminal immunity for core duties found nowhere in the Constitution, and frankly contradicted by the text, history, and theory behind the Constitution.” Same with birthright citizenship: the court agreed to hear Trump’s arguments even though the text of the 14th Amendment is very clear.
“Where the text interferes with partisan political goals,” notes Bouie, “this Supreme Court says to hell with the text.”
That implies another form of corruption: “Not having any particularly consistent jurisprudence. Despite grand claims of being originalists or textualists, this court often decides not based on any particular theory of jurisprudence, but simply on whether they have a decided interest in the case in question — a partisan or political interest.”
He notes a decision in 2022 where the court held that because the country has a limited history of gun regulation, there is therefore no tradition supporting New York state’s attempt to regulate individual ownership. Then the very next day, they released an opinion saying that, despite the fact that you cannot find very much evidence of abortion regulation in the American past, that doesn’t mean states can’t regulate or ban it.
Another example of hypocrisy is the issue of race. The court has previously held that the government can take race or religion into consideration for Trump’s travel ban, or for immigration stops, but then on Wednesday ruled that the government can’t use race to ensure minority representation or to remedy past discrimination. “Only when it comes time to hamper discrimination, to protect rights, is race impermissible," Bouie says.
Another sign of corruption: Clear preference to Republican presidents, even in the face of plainly established jurisprudence or congressional intent. The court will allow Trump to reassign agency priorities in the face of established law, but if former President Barack Obama wants to use the EPA to reduce carbon emissions, suddenly that is a presidential overreach the court kicks to Congress. “Under this court,” says Bouie, “when held by Republicans, presidential power is broad and expansive. Under Democrats, it’s cramped, barely legitimate.”
Bouie comes to an urgent conclusion, saying, “It is abundantly clear that as long as John Roberts has his majority, nothing the left of center in this country wants to do is safe or stable. Everything can be killed by the court. We can have democracy and self-government in this country, or we can have the Supreme Court as it exists, but we cannot have both.”
There are, says Bouie, solutions.
As the Republican Party is dragged down by the wildly unpopular President Donald Trump, there is a strong chance the Democrats will have a supermajority in 2029. “In that environment, Court reform must be table stakes. There’s no other choice. No other option. The rest of the agenda is simply not possible without court reform.”
Bouie says the court should be expanded in terms of the number of justices, but also the number of circuits and justices associated with circuits. He says there is too much power concentrated in the court, and one tool to reduce it is jurisdiction stripping, which is permitted under the Constitution. Congress can say that the court simply cannot adjudicate particular issues. Congress should also impose ethics reform on the court and put sharp limits on justices’ abilities to benefit financially.
He also suggests more radical options “that really would break up the power of the court and cut the court back down to size, to remind it that it doesn’t stand above the entire American system of a council of Kings.” He suggests the court’s building be turned into a museum of sorts, and the court returns to its original place — a basement in Congress. He argues that the court should lose its ability to select its own clerks and cases.
All of these powers were extended by Congress in the first place, and “what Congress can give, Congress can take away.”
The Constitution only says that there “shall be a supreme court,” but defines a very narrow original jurisdiction. Bouie says the U.S. should constitutionally restrict the court to its original jurisdiction and end its ability to hear appeals. That would mean creating a new national appeals court comprised of judges from all the existing courts. Each circuit would send two judges to the appeals court, and a random panel would hear cases.
And if that’s too extreme, Bouie says at the very least, Democrats should expand the court to 21 justices, have them hear cases based on randomly selected panels.
“The goal is to make it weaker,” says Bouie. “The goal is to make it more difficult to game the court’s decision-making. The goal is to uncaptured the court. To transform it into an actual court, and not some tool of partisan and ideological control.”
“There is simply no other choice here,” he concludes. “We can have government by judges, or we can have government by the people, but we cannot have both. The Supreme Court is corrupt, and it is well past time that we did something about it.”
