Courting Disaster

Yesterday, the Supreme Court Parade of Decisions continued, as they close out their term.  I was very pleased by their ruling that allowed mail-in votes to be counted after Election Day, as long as they were post-marked by midnight.  It was a ruling that only made sense, after all, since we don’t require in-person votes to be counted only on Election Day.  And I was extremely relieved by the decision that blocked the firing of officials on the independent Federal Reserve Board – but overall was appalled by their rulings.  Par of the course, alas. 

That the mail-in decision barely squeaked through by 5-4 for such a braindead issue, however, was disturbing.  And that the Federal Reserve Board decision was also just 5-4 is pathetic and scary that they came within just a single vote of giving Trump – or any president – full control of the board that sets financial standards for the country and is what gives the U.S. dollar such stability.  And almost worse (or perhaps worse) that the vote was totally contradicted by the Court’s other decision that a president can, without cause, fire employees of any independent agency -- experts charged with issues of safety and security, from the Consumer Protection Board to OSHA to the Federal Trade Commission to the Nuclear Regulatory Commission and more.  The decision (beyond being contradictory) is deeply problematic.  It not only undermines 90 years of precedent (yet another case of the High Court throwing out long-standing precedent which undermines the stability of the law), but is also, as Justice Sonia Sotomayor said in her dissent, “profoundly destabilizing” by giving full control to a president of agencies that were not only created by Congress, but written specifically to be independent.

It seems that in its far-right zeal to roll-over for lame duck Trump and keep giving expanded powers to the president by throwing out long-reaching precedent, they appear blissfully unaware that in 2-1/2 years there will likely be a Democrat in the White House.

At least we know that when the far-right complains about “activist judges,” they don’t really mean it, at least when it comes to what they advocate.

But these are the Court's decision.  And so they must be accepted.  Even if they are criticized.  Unlike what we regularly hear from Trump and many MAGOPs when a decision doesn't go their way, we haven't heard calls for any of the Justices to be impeached.  But that doesn’t mean problematic issues – including subverting the foundation of precedence in the law and eroding the Separation of Powers can’t be addressed. 

It turns out that Sen. Cory Booker was very bothered, as well – though not shockingly, he wasn’t alone.  He released a statement that he's determined to reform the Supreme Court, adding that he's terrified the country was just one vote away from losing on the counting of mail-in ballots, and that, as he put it, the Court is bought and paid for. And he intends to hold them accountable.

 While some may think he is referring to pushing for a Constitutional Amendment that deals with the Court, I feel sure that that’s unlikely.  Passing an Amendment is incredibly difficult.  It takes a vote of two-thirds of each house of Congress to just propose an Amendment, and then three-fourths of the states to approve it.  This makes passing an Amendment incredibly difficult, but can be overwhelmingly time consuming.  The Equal Rights Amendment passed Congress in 1971 – over half-a-century ago.  It still hasn’t passed the state vote (though has come close)– but has exceeded the 1979 deadline set by Congress, although there have been efforts to extend the deadline.  Further the initial effort to get the Equal Rights Amendment began 103 years ago, in 1923.  So, waiting on a Constitutional Amendment to address issues with the Supreme Court does not appear to be time well spent...

 However, there are changes that can be made by Congress.  One is to create Ethics Requirements for the Supreme Court which currently don’t exist.  (Though there are ethics rules for all other branches of the judiciary.  Go figure.)  However, there is also a belief among legal experts that Congress can create term limits for the Supreme Court, even without a Constitutional Amendment.  The more likely of these options is the creation of what’s called “Senior Status” Justices, which already exists in the judiciary.  This is where 18-year term limits would be implemented for High Court Justices, but “Senior Status” Justices would keep their lifetime appointments to hear all cases other than appeals (which are most of what the Supreme Court deals with).  These other cases would be like conflicts between states.  As a result, this allows Justices to keep their lifetime appointments as required by the Constitution, but with different, limited duties.

There are other options for Congress, like expanding the Court (an option I personally don’t like for many reasons, among them that for the next 2-1/2 years, any vacancies would be nominated by Trump, and also once Democrats do get a chance to add seats, when MAGOPs get their chance back they’ll likely offset that again), but then any changes will face a hurdle – and few will have immediate impact.  However, some hurdles are, at least, lower than others.  And the important thing here is that it's not just a case of disagreeing with a decision, but decisions that over time -- even when parties and presidents change -- have a negative impact on the country, whatever one's political belief.

Justice, we have long been told, is blind. 

You just wish that sometimes it didn’t pretend it was ignorant, too.