David Webber, Columbia MISSOURIAN October 14, 2022
U.S. Supreme Court Chief Justice John Roberts has joined several of his colleagues in expressing concern about the legitimacy of the Supreme Court.
They should be concerned.
Over the past four or five decades, the U.S. Supreme Court has devolved into a partisan, super-mini-legislature that makes creative but ideological decisions. It’s not entirely the justices’ fault; the U.S. Senate has helped them. But it is our historical failure to clarify and amend the U.S. Constitution that is the root of the problem.
A Gallup Poll conducted in early September found that public disapproval of the Supreme Court is 58%, approval is 40%, and, most surprising, only 2% don’t have an opinion. That’s the highest level of disapproval since the poll was started in 1972.
Several Supreme Court opinions, including the reversal of Roe v. Wade, are unpopular, but it is more likely that blatant partisanship of the Senate confirmation process has exposed the hyper-partisan foundation of the Supreme Court.
A simple, clear solution is for the Supreme Court to become more like the Missouri Supreme Court. That’s right — Missouri has led by example. It would take an amendment to the Constitution, but that may eventually be recognized as necessary.
There is little in the U.S. Constitution Article III about the powers, the structure and size of the Supreme Court. I have written about the court’s legitimacy before, so I won’t repeat my views in their entirety.
I have never been a fan of the Supreme Court’s power grabs, but I favor an orderly society that requires dispute resolution and criminal justice administration. We all need to be concerned about the legitimacy of our political institutions because it affects their capacity to govern.
Since I first learned, now 50 years ago, about Marbury v. Madison, decided in 1803, where Chief Justice John Marshall pronounced that the Supreme Court is in charge, I tend to see the group of justices as hubris elitists hiding behind fictions of traditions, making up ideas like “originalism” and pretending the Voting Rights Act is no longer necessary because the Voting Rights Act is what makes it look like it is not necessary.
I am aware that I am in a small minority holding such views. I prefer that we have an Article 1-originated government with the legislature clearly in charge.
In the perfect academic world, I can entertain arguments about the desirability of specific legislative delegation of authority to agencies such as the EPA, the subject of the recent West Virginia v. EPA decision, but public policies and court decisions matter.
Global climate change is causing tragedies like the hurricane-driven human hardship in Florida while the court dithers about the breadth of congressional delegation of authority. The speed of modern-day life may just be too much for our 1787 constitutional structure to handle.
Most Americans forget that the United States has a federalist form of government. Alongside the national government, we have 50 states with their own legitimacy and authority spelled out in their own constitutions. The 13 colonies existed before the United States. In fact, the states created the United States. The troublesome history of slavery, hiding behind the slogan of “states’ rights,” undoubtedly tarnished the concept of federalism.
The American judicial system is a dual system of federal and state courts, and it’s in state courts where 99% of the judicial activity takes place. State courts are really where the action is. Burglary, assaults, drug cases, death penalty, adoptions, divorces, property contracts and most negligence are all state court issues.
I’m concerned that the increasing and persistent disapproval of the U.S. Supreme Court will spill over and paint all courts as illegitimate. That would not be good.
Public opinion surveys about state courts find a similar trend of declining trust in the ability of the courts to achieve equal justice. For the first time there is a 1% trust deficit with 46% of respondents saying state courts are doing “well” or “very well” and 47% saying “not well” or “not at all well.”
Missouri’s history offers three reforms that should be considered for amendments to the U.S. Constitution. First is the example of the Non-Partisan Court Plan, adopted in 1940 and commonly known as the Missouri Plan, which is designed to reduce the role of partisan politics in the selection of judges. A permanent Judicial Selection Commission would review candidates for federal judges and nominate three candidates to the president, who would select one. A year later, a retention hearing would be conducted by the Senate and a retention vote would be held, requiring a two-thirds vote not to retain.
Second, retirement at the age of 70 should be mandatory. Currently, five Supreme Court justices are over 60, with two, Clarence Thomas and Samuel Alito, older than 70, and four are in their 50s. Establishing a retirement age introduces “new blood,” allows for predictability of replacements and removes the rigidity of “lifelong tenure.”
Third, the Supreme Court should adopt rotating chief justices where a justice serves as the coordinating administrator, like an academic department chair, for two years and then the tasks and organization responsibilities are passed on. Having a permanent chief justice who will reign until death contributes to the lack of transparency, reducing the court’s legitimacy.
Our national Constitution is old. Missouri has had four constitutions since 1821. Unfortunately, amending the national Constitution is taboo or considered a waste of time. The legitimacy of the political system may be at stake.
David Webber joined the MU Political Science Department in 1986 and wrote his first column for the Missourian in 1994.
Webber Rough and Polished 