November 29, 2022

Slouching Toward Reform

Guest Opinion
By Isiah Smith, Jr. | June 25, 2022

A recent Pew Research Center study found that only 2 in 10 Americans say they trust the government in Washington to do what is right. Trust in the government has declined somewhat since last year, when 24 percent said they could trust the government at least most of the time. The Brookings Institute reports that only 29 percent of Americans reported having confidence in the Supreme Court.

In Shakespeare’s Julius Caesar, Cassius says, “The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.” Perhaps our fault was in thinking that those occupying esteemed positions in government would be better people than ourselves. They would be smarter, more moral, and fairer. They wouldn’t be affected by partisan politics.

But this is not what has happened. There are almost 333 million people in the U.S., many of whom are suffering from mental illnesses, addictions, narcissism, and sociopathy (per The Daily Stoic). Some of those afflicted people invariably rise to the top of government. They may also harbor hatreds, prejudices, bad motives, or lack of compassion.

If only we could identify and weed out such people before they gain power. George Washington thought so as well. In his 1796 farewell address, Washington said, “Cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government.”

Our federal government is a huge Frankenstein monster that seems too big to reform. But reform we must, and it must start somewhere. But where?

To reform government, we must start with the Supreme Court, because that is where much of the harm originates. (Much of what we say here also applies to members of Congress). The court must be insulated from the political process. When a president chooses a justice, that individual might feel beholden to that president, and the president may expect something in return. Federal judges, including justices, should therefore be elected by the people they are supposed to serve. They should serve only one 20-year term, then leave the court while they still retain their cognitive abilities.

Supreme Court justices are the only judicial officers in the country not governed by an ethics code. The relevant federal code applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” It doesn’t apply to the Justices of the Supreme Court!

Justices serve “during good behavior,” meaning as long as they want. (But a justice’s wife can lobby against the peaceful transfer of power following a free and fair election without consequence to her husband). Nearly half of the justices die in office, regardless of their physical or mental condition.

A year ago, at the McConnell Center, Justice Barrett claimed that she and her fellow justices were not “a bunch of partisan hacks.” Yet, shortly after joining the court, in Louisiana v. American Rivers, she joined other justices in reviving a Trump administration rule that had set limits on states’ power to protect rivers from pollution under the Clean Water Act. This partisan move didn’t even merit a written decision explaining the “constitutional” grounds for the decision!

The case came into the court through the backdoor via an emergency or “shadow” docket. In the past, shadow docket cases were reserved for cases presenting urgent matters. It’s difficult to discern any urgency in this case. Partisanship, perhaps?

This conservative court has issued an increasing number of important court decisions without evident deliberation or explanation. This clandestine operation can have no other purpose than to hide the partisan purpose behind the “deliberations.” The last administration filed 41 emergency applications in eight years. The previous four presidential administrations only filed a total of eight such applications combined!

The justices’ abuse of emergency powers is alarming; however, that abuse pales in comparison to the evidence that at least three justices weren’t honest during their confirmation hearings. Justices Gorsuch, Kavanaugh, and Barrett said under oath that Roe v. Wade was settled precedent.

Imagine being hired to a job you can keep until you die. Imagine being unaccountable to anyone, able to work in complete secrecy without transparency. Would such an employee become disdainful, dismissive, impervious to criticism?

Maybe. At a judicial conference in Atlanta following the leak of a draft Supreme Court opinion that would gut Roe v. Wade and a half-century of the right to an abortion, Justice Thomas scolded Americans for not accepting controversial rulings. Americans are “addicted” to results they want and unwilling to live with outcomes they “don’t agree with,” he said. He warned that the court would not be “bullied” in the face of protest. Declining respect for the law and institutions, Thomas warned, “bodes ill for a free society.”

Reforming the government, including the Supreme Court, will be difficult, but not as difficult as staying on the path we are on.

Isiah Smith, Jr. is a retired government attorney.

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