Market Mad House

In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. Friedrich Nietzsche


The Future of the U.S. Supreme Court

A radical philosophy that runs counter to the values of the Founding Fathers is motivating the decisions of the U.S. Supreme Court. Moreover, that philosophy threatens to destroy the Supreme Court as we know it.

Surprisingly,that is the view not of some conservative pundit but of a liberal law professor. In his book, We the People University of California at Berkeley law professor Erwin Chemerinsky argues that the Supreme Court is too conservative for America.

In particular, Chemerinsky believes unrealistic political philosophy called strict interpretationism shapes the Court’s decisions. To explain, a strict interpretationist believes only the literal words of the Constitution are valid. Hence, anything else is unconstitutional.

What’s wrong with the U.S.Supreme Court?

Moreover, Chemerinsky believes the court is ignoring the general principles and philosophy behind the Constitution in favor of a strict interpretation. For instance, he thinks the preamble of the Constitution outlines a political philosophy of good government, liberty and progress America should follow. 

I think Chemerinsky is correct when he states a narrow and simplistic philosophy motivates conservative Supremes like Chief Justice John Roberts and Justice Samuel Alito. However, I think the true danger is the hyper-politicization of the court and the selection process.

Notably,the all-out political war that broke out over the appointment of Associate Justice Brett M. Kavanaugh portends judicial chaos. The Kavanaugh appointment was different because Democrats acted like Republicans and viciously attacked Kavanaugh for political reasons.

In the recent past, Republicans applied narrow political litmus tests to Supreme Court nominees and blocked Democratic nominees. During the Kavanaugh hearings the Democrats did the same thing.

Even if Kavanaugh turns out to be a good; or moderate, justice his appointment is so tainted with politics many Americans will always be view him with suspicion. In particular, I think Democrats will take drastic action against Kavanaugh at some point.

How Conservatives could destroy the U.S. Supreme Court

Disturbingly, Chereminsky outlines how conservatives could destroy the Supreme Court in a few years.

Chereminsky believes conservatives will try to overturn Roe v. Wade; the decision that legalized abortion, at some point. I think overturning Roe v. Wade will be a disaster because it will prompt one of two drastic courses of action from Democrats.

First, Democrats could try to impeach the justices voting to reverse the decision. Impeachment will fail because it requires a two-thirds (67 member) vote of the U.S. Senate.

Why Overturning Roe v. Wade will be a disaster for conservatives

Second,Democrats could try to pack the court to override the decision. To explain Democrats will add enough justices to the Supreme Court to override the conservative majority.

Unlike impeachment, court packing is constitutional and fairly easy. To explain, the Constitution sets no size for the Supreme Court so the president can appoint as many Justices as he or she likes.

Furthermore,all it takes to appoint somebody to the Supreme Court is a simple majority in the U.S. Senate (51 votes). Hence, a future president backed by a Democratic majority in the Senate could appoint two or three new justices willing to restore Roe v. Wade.

Such court packing is easier than your think. In fact, they have done before it before and succeeded. Back in 1870, President Ulysses S. Grant (R-Illinois)disagreed with the Supreme Court’s ruling in a case called Hepburn v. Griswold.

To explain, in Hepburn v. Griswold, the court took a radical position Grant disagreed with; it ruled paper money was unconstitutional. Grant overruled the Court by appointing two new justices dedicated to reversing Hepburn v. Griswold. Not surprisingly,the court overturned Hepburn v. Griswold less than a year later in Knox v. Lee.

How Overturning Roe v. Wade will destroy the U.S.Supreme Court as We Know it

Thus I do not think the present court would overturn Roe V. Wade given that history. Instead, I think Chief Justice John Roberts will join liberals in blocking any effort to overturn Roe v. Wade.

Roberts will take that step because he fears court packing. Pointedly, Roberts did just that in National Federation of Independent Business v. Sebelius, the so-called Obamacare case. I think Roberts wrote the decision upholding Obamacare’s constitutionality largely to prevent liberal attacks on the court.

On the negative side, all bets will be off if President Donald J. Trump (R-New York)can appoint enough justices to overturn Roe v. Wade. Such an action would enrage liberals, and force Democrats to add enough justices onto the court overturn it as soon as they got control of the White House and Senate.

This scenario is more likely than many people realize because of the age of the Supremes. For instance, two justices; Stephen G. Breyer and Ruth Bader Ginsburg are over 80. In fact, Ginsburg will be 86 next year and she has had health problems.

In addition, conservative Justice Clarence Thomas is 70, Alito is 68, Associate Justice Sonya Sotomayor is 65, and Roberts is 64. Thus, it is likely a justice will die or get sidelined by a health crisis in the next two years.

How Conservatives will make U.S. Supreme Court packing inevitable

Moreover,given the Republicans’ 54 seat majority in the Senate any Trump nominee faces an easy approval process. Consequently, we are likely to get a conservative Supreme Court inclined to make narrowly focused and ideologically motivated decisions.

Moreover,we are likely to see a liberal Democratic Congressional majority and president within the next 10 years. Notably, left-leaning Democrats won control of the House in the 2018 midterm election.

Hence,such a court will be on a collision course with the executive and legislative branches and a large segment of the voting public. Under those circumstances political pressure for court packing will become irresistible.

We will see a Very Different U.S. Supreme Court in 10 Years

Therefore,the conservative majority and its extreme positions will destroy the U.S.Supreme Court as we know it.

Hence, I expect we will see Chief Justice Roberts presiding over a very different Supreme Court in eight or 10 years. The composition of that court is unclear but I suspect Conservatives will not like it. On the other hand, Erwin Chemerinsky will like that court.

If this prophecy comes true, Republicans will have only themselves to blame. They were the ones who let Think Tank intellectuals pack the courts with ideological zealots. Thus, the Republicans will deserve what they get when Democrats take their court packing strategy to its logical conclusion.