The United States Supreme Court, once the most prestigious court in the world, has been reduced to a politically gerrymandered court by the Republican Senators’ refusal to even review President Obama’s nominee and Donald Trump’s pledge to pack the Court with political ideologues, guaranteeing rulings he sees as politically beneficial. Trump will have little difficulty keeping his promise given the Republican majority in the Senate. I do not expect the Court will recover from this harm within the remainder of my legal career or lifetime.
The framers of the Constitution envisioned a Court that would be as insulted as possible from the political process. The first and most famous case ever decided by the Court, Marbury vs. Madison, was rooted in the idea that the Court is immune from political restructuring. The Court rejected an expansion of its jurisdiction by Congress through the political process and held that jurisdiction of the United States Supreme Court is established by the Constitution. The Court’s authority, like the Court itself, is beyond the political process. Judges do not serve at the pleasure of the President or Congress; they have lifetime appointments. This principle of law has been incredibly important in American jurisprudence. Neither Congress nor the President can remove or expand the Court’s jurisdiction in response to the political winds of the time, nor can they retaliate against a Judge or the Court for rendering a politically unfavorable decision.
The role of the Court in protecting the freedoms of and ensuring justice for the American people cannot understated. Removing bigotry, prejudice, and injustice from American law has rarely been achievable through the ballot. Desegregation, repeal of miscegenation laws, removal of literacy tests for voting, privacy rights, the right of counsel for people accused of crimes, the right to be free from unlawful search and seizure, the right of married couples to use birth control, and the right for same sex marriage were all achieved at the Supreme Court and would have all failed if put to a vote. Strict textualists, such as former Justice Scalia and those whom I expect Trump will nominate, insist that rights which are not explicitly stated in the Constitution do not exist. They disagree with the perspective of Justice Douglas who wrote that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” Griswold v. Connecticut, 381 U.S. 479, 484 (June 7, 1965). In simpler language, there are rights that are not explicitly stated, but are implied in the text, such as the right for a parent to raise and educate a child, including sending a child to a religious school rather than a public secular school.
That the Constitution and the Supreme Court allow rights to develop in response to our collective experience rather than through the nearly impossible political process of Constitutional amendment is one of the great strengths in our legal system and has allowed our nation to remain a leader in human rights. As Alan Dershowitz postulates in his book “Rights from Wrongs: A Secular Theory of the Origins of Rights”, human rights do not come from G-d, or nature, or even from logic. Instead, they come “from human experience, particularly experience with injustice. We learn from the mistakes of history that a rights-based system and certain fundamental rights…are essential to avoid repetition of the grievous injustices of the past.” In other words, rights come from wrongs and are recognition of those wrongs. A great example of this is found in the Constitution itself where the framers included a right contained in the Third Amendment prohibiting the government from forcing people to quarter troops in their homes during peacetime. This is not a right most of us would consider putting into the Constitution if we were writing it today. Indeed, there has never been a Third Amendment case brought to the Supreme Court. This Amendment exists as a relic of the experience of the framers and their fears based upon that experience.
Sadly, I greatly fear that the era of the Court standing between the people and the government as a neutral arbiter of the rights secured by the Constitution is over. For the first time in our history we may see the United States Supreme Court moving in reverse where, rather than finding emerging rights, the Court will remove existing rights from the people. More importantly perhaps, I fear that, due to the political games that have been played by the Republicans in the appointment process, the United States Supreme Court has lost the moral authority and diversity of thought it once possessed. The Constitutional vision has been undermined and unfortunately the Court, and likely the American people, will suffer.